St. Louis & O'Fallon Railway Co. v. United States
St. Louis & O'Fallon Railway Co. v. United States
Opinion of the Court
delivered the opinion of the Court.
, These "are cross appeals from the final decree of the District Court, Eastern Missouri, — three judges sitting — in a suit do annul an Interstate Commerce,Commission,order, dated February 15, 1927, which directed St. Louis and O’Fallon Railway Company to place in a reserve fund one-half of its determined excess income for. the ypars 1920 (ten months), 1921, 1922 and 1923 (that is half of the sum by which the net railway operating income for each of those years exceeded six' per cent of the ascertained value of property devoted to public service); and to pay to the Commission the remaining one-half with six per cent interest beginning four months after termination of the year, i. e., May 1, 1921; 1922, 1923 and 1924.
Section 15a, added to the Interstate Commerce Act by Transportation Act, 1920, contains nineteen paragraphs. . Of those specially important here, 1, 2, 3, 5, 7 and 8 are copied in the margin;
“ (4) For the purposes of this section, such aggregate value of the property of the carriers shall be determined*479 by the Commission from time to time and as often as may be necessary. The Commission may ütili'ze the results of its investigation under section 19a of this Act, in so far as deemed by it available, and shall give due consideration' to all the elements of value recognized by the law of the*480 land for rate-making purposes, and shall give to the property investment account of the carriers only that consideration which under such law it is entitled to in establishing values for rate-making purposes. Whenever pursuant to section 19a of this Act the value of the railway property of any carrier held for and used in the service of transportation has been finally ascertained, the value so ascertained shall be deemed by the Commission to be the value thereof for the purpose of determining such aggregate value.’'
“(6) If, under the provisions of this section, any carrier receives for any year a net railway operating income in excess of 6 per centum of the Value of the railway property held for and used by it in the service of transportation, one-half of such excess shall be placed in a reserve fund established and maintained by such carrier, and the re-, maining one-half thereof shall, within the first four months following the close of the period for which such computation is made, be recoverable by and paid to the Commission for the purpose of establishing and maintaining a general railroad contingent fund as hereinafter described.*481 For the purposes of .this paragraph the value of the railway property and the net railway operating income of a group of carriers which the Commission finds are under common control and management and are operated as a single system, shall be computed for the system as a whole irrespective of the separate ownership and accounting returns of the various parts of such system. In the case of any carrier which has accepted the provisions of section 209 of this amendatory Act the provisions of this paragraph shall not be applicable to the income for any period prior to September 1, 1920. The value of such railway property shall be determined by the Commission, in the manner provided in paragraph (4).”
After an investigation instituted under § 15a, May 14; 1924, for the purpose of determining incomes received by St. Louis and O’Fallon Railway Company (The' O’Falldh) and-Manufacturers’ Railway Company (The Manufacturers’), asserted to be parts of one system, for the years 1920-1923, the Commission found: (1) Although the stock of both corporations was mostly owned by the Adolphus Busch Estate and their principal officers were the same, they were not carriers operated under common control and management as a single system within paragraph 6. (2) The Manufacturers’ had received no excess operating income. (3) The value of The O’Fallon’s property devoted to public service in 1920 (ten months) was $856,-065; in 1921, $875,360;'in 1922,.$978,874; in 1923, $997,-236; and during each of those years it received net operating income exceeding six per cent upon the stated valuation.
The above-described recapture order followed.
The . cause is properly here under the Judicial Code, as amended by Act of February 13, 1925, (U. S. C., Title 28, § 345)—
“ Sec. 238. A direct review by the Supreme Court of an interlocutory or final judgment, or decree of a district*482 court may be had where it is so provided in the following Acts or parts of Acts and not otherwise: . .. .'
“(4) So much of 'An Act making appropriations . . . for the fiscal year 1913, and for other purposes/ approved October 22, 1913, as relates to .the review of interlocutory and final judgments and decrees in suits to enforce, suspend, or set aside orders of the Interstate Commerce Commission other than for the payment of money. ...” -■ .
The Act of October 22, 1913, (38 Stat. 219, 220) transferred to District Courts the jurisdiction granted to the Commerce Court by Act of June 18, 1910, (36 Stat. 539); and provided for review by this Court of causes embraced therein. The jurisdiction of the Commerce Court included—
“-First. All cases for the enforcement, otherwise than-by adjudication and collection of a forfeiture or penalty or by infliction of,criminal punishment, of any order of the Interstate Commerce Commission other than for the payment of money.
Second. Cases brought to enjoin, set aside, annul, or suspend in .whole, or in part any order of the Interstate Commerce Commission. ...”
Paragraph (4), § 238, applies to all those causes formerly cognizable by the Commerce Court and reviewable here. The words “ other than for the payment of money ” were taken from clause First, Act of 1910, above quoted and, as there, they delimit the trial court’s jurisdiction They do not inhibit review here of any cause formerly' cognizable by the Commerce Court. Moreover, the order under consideration was not merely for payment of money; and the proceeding below was to set aside, not to enforce it.
Wisconsin Railroad Commission v. Chicago, Burlington & Quincy R. R. Co., 257 U. S. 563, and Dayton-Goose
The Manufacturers’ is a switching road with thirty miles of track within St. Louis, Missouri. The O’Fallon— a coal-carrying road — has nine -miles of main line, all in Illinois, and this connects with The Terminal Railroad at East St. Louis. Through the latter deliveries are made to sundry points in St. Louis, some of which are on The Manufacturers’ line. “ The distance between the railroad of the O’Fallon and the railroad of the Manufacturers’ is about 12 miles, and all communication by rail between the two properties is effected over the tracks of the Terminal, including a bridge over the Mississippi River.” Both the Commission and the District Court held that the record failed to show these two roads were under common control and management and operated as a single system'within the meaning of paragraph 6. We accept their conclusion.
The Commission directed The O’Fallon to pay 6% interest on the recaptured one-half of its ascertained excess net railway operating income beginning four months from the end of the year during which the excess accrued (§ 6). The District Court rightly ruled that as the carrier made bona fide denial of any excess under circumstances sufficient to justify a contest, no interest should have been imposed .for any time prior to the final' order. Not until then could the carrier know what, if anything, it should pay.
Also, we think the District Court rightly rejected the claim that excess earnings were not recapturable unless and until the Commission had fixed a general level of rates intended to yield fair return upon the aggregate value of carrier property either as a whole, or in some prescribed rate or territorial group. Congress, of course,
Paragraph 4, § 15a, directs that in determining values of railway property for purposes of recapture the Commission “ shall give due consideration to all the -elements of value recognized by the law of the land for rate-making purposes, and shall give to the property investment account of the carriers only'that consideration which under such law it is entitled to in establishing values for rate-making purposes.” This is an express command; and the carrier has clear right to demand compliance therewith. United States ex rel. Kansas City Southern Railway Co. v. Interstate Commerce Commission, 252 U. S. 178.
“ The elements of value recognized by the l$w of the land for rate-making purposes ” have been pointed out many times by this Court. Smyth v. Ames, 169 U. S. 466; Wilcox v. Consolidated Gas Co., 212 U. S. 19; Minnesota Rate Cases, 230 U. S. 352; Southwestern Bell Teler phone Co. v. Public Service Commission, 262 U. S. 276; Bluefield Water Works & Improvement Co. v. Public Service Commission, 262 U. S. 679; McCardle v. Indianapolis Water Co., 272 U. S. 400. Among them is the present cost of construction or reproduction.
Thirty years ago, Smyth v. Ames announced (546):
“We hold, however, that the basis of all calculations as to the reasonableness of rates to be charged by á cor*485 poration maintaining a highway under legislative sanction must be the fair value of the property being used by it for the convenience of the public. And in order to ascertain that value, the original cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stock, the present as compared with the original cost of construction, the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet operating expenses are all matters for consideration, and are to be given such weight as may be just and right in each case. We do not say that there may not be other matters to be regarded in estimating the value of the property. 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 public highway than the services rendered by it are reasonably worth.”
In Southwestern Bell Telephone Co. v. Public Service Commission, supra (287), we said: “It is impossible to ascertain what will amount, to a fair return upon properties devoted to public service without giving consideration to the cost of labor, supplies, etc., at the time the investigation is made. An honest and intelligent forecast of probable future values made upon a view of all the relevant circumstances, is essential. If the highly important element of present costs is Wholly disregarded such a forecast becomes impossible. Estimates for tomorrow cannot ignore prices of today.”
The doctrine above stated has been consistently adhered to by this Court.
The report of the Commission is long and argumentative. Much of it is devoted to general observations relative to the method and purpose of making valuations; many objections are urged to doctrine approved by us and the superiority of another view is stoutly asserted.
. The following from the dissenting opinion of Commissioner Hall, concurred in by three others, accurately describes the action of the Commission:—
“ In order to determine the value of the O’Fallon property devoted to carrier service during the recapture periods, 10 months in the year 1920 and the years 1921, 1922, and 1923, we start with a valuation or inventory date of June 30, 1919. The units in existence on that date are known. Original cost of the entire property can not be ascertained. As to the man-made units we estimate the cost of reproducing them in their condition on that date and in so doing apply to the units installed prior to June 30, 1914, the unit prices of 1914, representing a fairly consistent price level for the preceding 5 or 10 years. To like units, installed after June 30, 1914, and prior'to June 30, 1919, we apply the same prices, but add a sum representing-price increases on those units during, that period. For the third period; from June 30, 1919, down to each recapture date, we'abandon estimate and turn to recorded net 'cost of additions less retirements. On this composite, made up' of estimated value for two periods and ascertained net .cost for the third period, the majority base a conclusion as to value at recapture date of the man-made items. Land goes in at its current value as measured by that of neighboring lands.
“ Without summarizing the other processes, all clearly stated in the majority report, it will be observed that the rate-making value arrived at for the successive recapture periods, as for example the year 1923, rests upon 1923*487 market value of lands; costs of other property installed since June 30, 1919; unit prices of 1914, enhanced by allowancé for increased cost of units installed during June 30, 1914-1919; and, for the units installed prior to June 30, 1914, constituting by far the major part of the property, unit prices of 1914 without any enhancement whatever. As to this major part of the carrier’s property devoted to carrier purposes in 1923 no consideration is given to costs and prices then obtaining or to increase therein since 1914.”
' In the exercise of its proper function this Court has declared the law of the land concerning valuations for rate-making purposes. The Commission- disregarded the approved rule and has thereby failed to discharge the definite duty imposed by Congress. Unfortunately, proper heed was denied the timely admonition of the minority — “ The function of this commission is not to act as an arbiter in economics^ but as an agency of Congress, to apply the law of the land to facts developed of record in matters committed by Congress to our jurisdiction.”
The question on which the Commission divided is this: When seeking to ascertain the valué'of railroad property for récapture purposes, must it give consideration to current, or reproduction, costs? The weight to be accorded thereto is not the matter before us. No doubt there are some, perhaps many, railroads the ultimate value of which should be placed far below the sum necessary for reproduction. But Congress has directed that values shall be fixed .upon a consideration of present costs along with all other pertinent facts; and this mandate must be obeyed.
It was° deemed unnecessary by the Court below to determine whether the Commission, obeyed the statutory direction- touching valuations since the order permitted The O’Fallon to retain an income great enough to negative any suggestion of actual confiscation. With this we
The judgment of the court below must be reversed. A decree will be entered here annulling the challenged order.
Reversed.
“ Section 15a. (1) [This defines the terms employed.]
“ (2) In the. exercise of its power to prescribe just and reasonable rates the Commission shall initiate, modify, establish or adjust such rates so that carriers as a whole (or as a whole in each of such rate groups or territories as the Commission may from time to time designate) will, under honest, efficient and economical management
“(3) The Commission shall from time to time determine and make public what percentage of such aggregate property value constitutes a fair return thereon, and such percentage shall be uniform for all rate groups or territories which may be designated by the Commission.' In making such determination it shall give due consideration, among other things, to the transportation needs of the reentry and the necessity (under honest, efficient and economical management of existing transportation facilities) of enlarging such facilities in order to provide the people of the United States with adequate transportation: Provided, That during the two years beginning March 1, 1920, the Commission shall take as such fair return a stun equal to 5%. per centum of such aggregate value, but may, in its discretion, add thereto a sum not exceeding one-half of one per centum of such aggregate value to make provision in whole or in part for improvements, betterments or equipment, which, according to the accounting system prescribed by the Commission', are chargeable to capital account.
“(5) Inasmuch as it is impossible (without regulation and control in the interest of the commerce of the United States considered as a whole) to establish uniform rates upon competitive traffic which will adequately sustain all the carriers which are engaged in such traffic and which are indispensable to the communities to which they render the service of transportation without enabling some of such carriers to receive a net railway operating income substantially and unreasonably in excess of a fair return upon the value of their railway property held for ’ and used in the service of transportation, it' is hereby declared that any carrier which receives such an income so
“(7) For the purpose of paying dividends or interest op its stocks, bonds or other securities, or rent for leased roads, a carrier may draw from the reserve fund established and maintained by it under the provisions of this section to the extent that its net railway operating income for any year is less than a sum equal to 6 per centum of the value of the railway property held for and used by it in the service of transportation, determined as provided in paragraph (6); but such fund shall not be drawn upon for any other purpose.
“(8) Such reserve fund need not be accumulated and maintained by any carrier beyond a sum equal to 5 per centum of the value of its railway property determined as hérein provided, and when such fund is so accumulated and maintained the portion of its excess income which the carrier is permitted to retain under paragraph (6) may be used by it for-any lawful purpose.”
Dissenting Opinion
dissenting.
The main question for consideration is that of statutory construction. By- Transportation Act, 1920, February 28, 1920, c. 91, § 15a, 41 Stat. 456, 488, Congress delegated to the Interstate Commerce Commission the duty to establish and maintain rates which will yield “ a fair return upon the aggregate value of the railway property” of the United States. By paragraph 4 thereof, it directs that in ascertaining value the Commission shall “ give due consideration to all the elements of value recognized by the law of the land for rate-making purposes ”; and shall “ give to the property investment account only that consideration which under such law it is entitled to in establishing values for rate-making purposes.” The report of the Commission, which accompanies the order challenged, declares: “ In the methods of valuation which we have followed in this proceeding we have endeavored to give heed to this direction [that contained in paragraph 4] . . .” Excess Income of St. Louis and O’Fallon Ry. Co., 124 I. C. C. 3, 19. Speaking for the dissenting members, Mr. Commissioner Hall said: “ If the law needs change, let those who made it change it. Our duty is to
Section 15a makes no specific reference either to the original cost of the property, or to prudent investment, or to current reproduction cost, or to the then existing price level. Section 19 (a) (the valuation provisions of the Act of 1913), to which § 15a refers, directs the Commssion to report, among other things, “ in detail as to each piecd of property, . . the original cost to date, the cost of reproduction new, the cost of reproduction less depreciation and also “ other values, and elements of value.” After the. enactment- of § 15a and before entry of the order challenged, it was held in Southwestern Bell Telephone Co. v. Public Service Commission, 262 U. S. 276, a cáse arising under a-state law, that the rate-base on which a public utility is constitutionally entitled to earn a fair return is the then actual value of the property used and useful in the business, not the original cost or the amount prudently invested in the enterprise. The Government concedes that current reproduction cost is admissible as evidence to show present value under § 15a. The carrier concedes now that neither Congress, nor the common law, made current reproduction cost the measure of-value. The question on which the Commission divided is this:- Did Congress require the Commission when acting under § 15a to give, in all cases and in respect to all property, some, if not controlling, effect to evidence establishing the estimated current cost of reproduction? Or did Congress intend to leave to the Commission the authority to determine, as in passing upon other con
The O’Fallon contends, among other things, that the order is confiscatory. The claim is that the order left to the company a return of only 4.35 per cent upon the value ascertained in accordance with the rule declared in the Southwestern Bell case and McCardle v. Indianapolis Water Co., 272 U. S. 400. If this were true, it would be immaterial whether Congress purported to authorize £he course pursued by the Commission. But the fact is thát, in each of the recapture periods, the earnings were so large as to leave, after making the required payments to the Commission, about 8 per cent on what the carrier alleged was the fair value of the property. The O’Fallon argues that, since the statute and the order required it to hold as a reserve one-half of the excess over 6 per cent,, it is deprived, of that property. This is not true. The requirement that'one-half of the earnings in excess of 6 per cent shall be retained by the carrier until the reserve equals 5 per cent of the value of the railroad does not deprive the carrier of any property. It merely regulates the use thereof. Compare Kansas City Southern Ry. Co. v. United States, 231 U. S. 423, 453. The provision is one designed to secure financial stability; and is similar to those prescribing sinking funds, depreciation, and other appropriate accounts.
The claim of the O’Fallon is in substance that, since construction costs were higher during the recapture periods than in 1914, the order should be set aside, because the Commission failed to find that the existing structural property and equipment which had been acquired before Juste 30, 1914 was f worth more than it had been then.
First. The Commission is a factfinding body. The question whether it must give to confessedly relevant facts evidential.effect is solely one of adjective law. Statutes have sometimes limited the weight or effect of evidence. They have often created rebuttable presumptions and have shifted the burden of proof. But no instance has been found -where under our law a fact-finding body has been required to give to evidence an effect which it does not inherently possess. Proof implies persuasion. To compel the human mind to infer in any respect that -which observation and logic tells us is not true interferes with the process of reasoning of the fact-finding body. It would be a departure from the unbroken practice to require an artificial legal conviction where no real conviction exists.
An arbitrary disregard by the Commission of the probative effect of evidence would, of course, be ground for setting aside an order, as this would bp an abuse of discretion. Orders have been set aside because entered without evidence;
Second. While current reproduction cost may be said to.be an element in the present vajué of. property, in the sense that it is “ evidence properly to be considered in the ascertainment of value,” Standard Oil Co. v. Southern Pacific Co., 268 U. S. 146, 156, it is clear that current cost of reproduction higher than the original cost does not necessarily tend to prove a present higher value. Often the fact of higher reconstruction cost is without any influence on present values. It is common knowledge that the current market values of many office buildings and residences ..constructed prior to the World War have failed to reflect the greatly increased building costs of recent years, although the need df new buildings of like character was being demonstrated by the large volume of con
Third. The terms of § 15a and its legislative history preclude the assumption that Congress intended by paragraph 4 to deny to the Commission in respect to evidence of reconstruction cost the discretion commonly exercised in determining what weight, if any, shall be given to an evidential fact. In 1920, no fact was more prominent in the mind of the public and of Congress than that the cost of living was far greater than that prevailing when the existing railroads were built.
Congress did intend to provide a return on the existing railroad property which should be only slightly more than that which had been enjoyed during the six preceding years. To have required that the then price level be reflected in the values to be fixed under § 15a would have resulted in a rate-base of double the property investment •account of the carriers. For the cost of living was then about double prewar prices. The prescribed fair return
In making provision for a fair return, the main purpose was not to increase the earnings of capital already invested in railroads, but to attract the new capital needed for improvement or extension of facilities.
“ The basis adopted by the Committee is three-tenths of 1 per cent higher than the basis of the test period [the three" years preceding June 30, 1917]; and assuming, though not conceding that the value of the property is equal to the property investment accounts, it will yield for all the railways a net operating income of $54,000,000 in excess of the income of the test period. There were two considerations which led the majority of the committee*500 to believe that this increase is not only warranted but necessary:
“First. The railways are being returned to their owners when everything is unsettled and-abnormal; when there is suspicion and distrust everywhere.. Just what rate of return will enable the carriers to finance themselves under such conditions can not, with certainty be determined. It was felt, therefore, that some increase over the prewar period was justifiable.
“ Second. As compared with all kinds of commodities, money is much less valuable than it was a few years ago, and it would seem to be only , fair that the returns from railway investments should be reasonably advanced.”
The means by which the bill was to accomplish the desired end are thus stated in the report:
“ First: By prescribing a basis of return upon the value of the railway property, to give such assurance to investors as will incline them to look with favor upon railway, securities; that is to say, by making a moderate return reasonably certain to establish credit for the carriers.
“ Second: In making the return fairly certain to secure for the public a lower capital charge than would otherwise be .-necessary.
“Third: In requiring some carriers, which under any given body of rates will earn more than a fair return, to pay the excess to the Government and in so using this excess that transportation facilities or credit can be furnished to the weaker carriers, and thus help to maintain the general system of transportation.”
Either increase in the rate of return or increase of the base on which that return is measured would have served to adjust compensation to higher price levels. The adoption by Congress of the increase in the return, as the means of compensating for' the decreased purchasing power of the dollar, precludes the assumption that it intended that the valuation should' reflect that lessened pur
Fourth. The declared purpose of Congress in enacting § 15a was the maintenance of an adequate national system of railway transportation, capable of providing the best possible service to the public at ..the lowest cost consistent with full justice to the private owners. Following the. course consistently pursued by this Court in applying other provisions of the Interstate Commerce Act, Texas & Pacific Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197, 211, 219; New England Divisions Case, 261 U. S. 184, 189-190; Dayton-Goose Creek Ry. Co. v. United States, 263 U. S. 456, 478, the Commission construed § 15a in the light of fhé'declared purpose of Congress and of the economic factors involved. From its wide knowledge of actual conditions and its practical experience in rate making, it concluded that to give effect to enhanced reproduction costs would defeat that purpose. (p. 27.)
It knew that the value for rate making purposes could not be more than that sum on which a fair return could be earned by legal rates; and that the earnings were
Fifth. Other considerations confirm the construction given by the Commission to the phrase “value for rate making purposes,” as used in § 15a. In condemnation proceedings, the owner recovers what he has lost by the
Value has been defined as the ability to command the price.
Recent experience affords striking examples of com-, mercial limitations upon rates. In Ex parte 74, Increased Rates, 1920, 58 I. C. C. 220, the Commission sought to establish rates which would yield 6 per cent upon the aggregate values of the railroads in the several groups. The carriers claimed as the aggregate value $20,040,572,611— that, amount being carried on their books'as the cost of road and equipment. The Commission fixed the value about 5 per cent lower — at $18,900,000,000. In order to produce on that sum net earnings equal to 6 per .cent, it increased freight rates, in the eastern group, 40 per cent over the then existing rates; in the southern group 25 per cent; in the western group 35 per cent; and in the mountain-Pacific group 25, per cent.
On a large number of basic commodities, which were among the most important articles of commerce, the rates proved to be higher than the traffic would bear. Reductions became imperative. Within a year after the entry of that order, many applications for reductions were made to the-Commission, not only by shippers but also by the carriers themselves. It was estimated that the reductions in freight rates made by the carriers prior to March 15, 1922, would aggregate for that year $186,700,000; and would lower the general rate level nearly 5 per. cent. On some important articles of traffic the entire increase made by Ex parte 74 was cancelled.
This constant lowering of the weighted average of rates since 1920 must have been due to causes other than desire on the part of the Commission. Its aim was to adjust rates so that they would yield the prescribed return. But for the period from 1920 to 1927 inclusive, there was only one year in which the railroads of the United States as a whole, despite general prosperity and greater efficiency, earned on the value found in Ex parte 74 brought down to date, the full average return prescribed as fair under
Sixth. Since 1914, the railroads have been obliged, to an ever increasing extent, to compete with water lines and. with motors. This competition has been fostered by the Goveriiment
The influence of water competition on rates is strikingly illustrated by the effect of the Panama Canal on transcontinental freight rates.
Moreover, rates which are not so high as to prevent commercially the movement of traffic are often required to be lowered because they conflict with some statutory, provision. Thus, Congress compels reduction of rates which .discriminate unjustly against individuals, localities, articles of traffic or other carriers. Perhaps the most striking instance of the limitation by law of rates which the traffic would bear commercially is furnished by cases under the long and short haul clause. By that clause, a rail carrier is ofteh obliged (unless relieved by order of the Commission) to elect betweén suffering practically a total loss of existing traffic between competitive points or suffering á loss in existing revenues by reducing rates at both the competitive points and intermediate noncompetitive points. The effect of this limitation upon rates, and hence upon the actual value of railroads, has become very great. Its influence has grown steadily with the growth
Seventh. In requiring that the value be ascertained for rate making purposes, Congress imposed upon the rate-base as defined in Smyth v. Ames, still another limitation which is far-reaching in its operation. By declaring in § 15a that the Commission shall, “ in the exercise of its
Independently of any statute, it is now recognized that, when in confiscation cases it is sought to prove actual value by evidence of reproduction cost, the evidence must be .directed to the present cost of installing such a plant-as would be required tQ supply the same service. For valuation of public utilities by reproduction cost implies that “ the rates permitted should be high enough to allow a reasonable per cent of return on the money that would now be required to construct a plant capable of rendering the desired service ”; and does not mean' " that the plant should be valfied at what would now be needed to
The lessening of the. service value of a part of the railroad plant may flow from changes in the volume or character of its traffic. For economy and efficiency are obviously to be determined with reference to the business of the carrier then being done and about to be done.
Perhaps the mqst common cause of the lessening of service value of parts of railroad plants originally well conceived and still in good physical condition is the progress in the art of rail transportation.. Science and invention have wrought since June 30, 1914, such extraordinary improvements in the types of automobiles and aeroplanes that.no one would contend that the present service value of such machines should be ascertained by enquiring what their original cost was or what their reproduction cost would be. . The progress since June 30, 1914, in the art of transportation by railroad has been less spectacular; but the art has. been far. from stagnant.
Its economies are compelling. But important changes in roadway and equipment are conditions of its effective use. Heavier locomotives make greater demands on the road structure which carry them. To obviate large maintenance expenses attendant upon frequent repair and replacement the roadway-must be made more durable.
Thus, the efficient post-war railroad plant differs widely even from the efficient one of 1914. That during the' recapture period here in question the plants of most of
It may be urged t,hat the continued use of the inefficient plant
It may also be urged that such functional depreciation of the railroad plant since 1914 is allowed for in the depreciation customarily estimated by the Commission. But this is not true. Functional depreciation prior to June 30, 1914, was included when valuing as of that date
If weight is toTie given to reproduction cost in making the valuation of any railroad for rate making purposes under. § 19a and § 15a, there must be a determination of the functional depreciation pf the individual plant as compared with a modern, efficient plant adequate to perform the same service. To make such a determination for any railroad involves a detailed enquiry into the character and condition of all those parts of the plant which may have reduced functional value, because of the post-war changes affecting transportation above referred to, and also into the character and the volume of the carrier’s business. For the efficient plant means that plant which is economical and efficient'for the particular carrier in view of the peculiar' requirements and possibilities of its own business. To make such a determination justly, the Commission must have the data on which a competent and vigilant management would , insist when required to pass upon the advisability Of making capital
To make such a determination of functional depreciation annually for each of the railroads of the United States would be a stupendous task, involving perhaps prohibitive expense. To make the necessary decisions promptly would seem impossible, among other reasons, because railroad valuation is but a small part of the many duties of the Commission. On the other hand, to adjust rates so as to render a fair return, and to provide through the recapture provision funds in aid of the weaker railroad,- are tasks which Congress deemed urgent; and which must be promptly pérformed if its purpose is to be achieved. Obviously Congress intended that in making the necessary valuations under § 15a a method should be pursued by which the task which it imposed upon the Commission could be performed. Compare New England Divisions Case, 261 U. S. 184, 197. Recognizing this, the Commission construed § 15a as it had paragraph (f) of § 19a. That is, as permitting the Commission to make a basic valuation as of some general date (June 30, 1914 was selected); and, unless good reason to ,the contrary appeared, to find the value for any year thereafter by adding to or subtracting from the 1914 value the net increases or decreases in the investment in property devoted to transportation service as determined from the carrier’s annual returns with due regard to the element of depreciation.
Of both railroads and the local utility it is true, under the rule of substantive law adopted in the Southwestern Bell case, that value is the sum on which a fair return can be earned consistently with the laws of trade and' legal enactments. But the operative scope upon railroads of the limitations so imposed upon the rates, and
The legal limitations upon rates (so potent in the case of railroads) are, in the main, inoperative in the case of such a water company. Rail rates are sometimes held illegal because the exaction is greater than the value of the service to .the shipper. There is in fact no corresponding limitation Upon water rates. The- charge is so small, as .compared with the inconvenience which would be
It is true that in the Southwestern Bell case the Court passed also upon a. subsidiary question — the v/eight and effect of the evidence of reconstruction cost. But the question of adjective law arose upon a record yery different from that in the case at bar; and the action of the Commission here is entirely consistent with that decision. In the Southwestern Bell case direct testimony as to the then value of the property was introduced. The efficiency of the plant was unquestioned. Witnesses had testified both to the actual cost of constructing identical property at that time; and that the specific property under consideration was worth at least 25% more than the estimate of the state commission. The Court believed those witnesses. Concluding that this direct and uncontradicted evidence had been ignored by the state commission be
The action of the Commission in the case at bar was consistent also with McCardle v. Indianapolis Water Co., 272 U. S. 400, and Bluefield Water Works Co. v. Public Service Commission, 262 U. S. 679. Each of these water companies enjoyed a local monopoly of an indispensable service. In order to provide a substitute, the community would have either to take the utility’s property by eminent domain; or, if it was free to do so, build a competing plant. There was practically no commercial limitation upon the earning power of these water companies except the extent of the local market; and practically no legal limitation except the requirement that the rates charged should not be so high as to yield an excessive return upon the actual value of the utility’s property. The current cost of constructing then a plant substantially like the utility’s (assuming it to be efficient) would be persuasive evidence of its actual value. For upon that issue, concerning a local water monopoly, the enquiry would naturally be: How much would it cost the community to substitute for the private monopoly a publiely owned plant? But evidence of the cost of reconstructing a railroad built before 1914 might, for the reasons stated above, be no indication whatever of its post-war value for rate making purposes under § 15a. And where, as in the case at bar, the probative force of the evidence may be considered free from any question of confiscation, the rule declared in Ohio Valley Water Co. v. Ben Avon, 253 U. S. 287, which requires in confiscation cases a judicial determinar tion on the weight of the evidence, does not apply.
Ninth. A further question of construction requires consideration. It is suggested that, even if the Commission
The recapture of excess earnings and the establishment of reserves are a part of the process of establishing such rates
“. . . that carriers as a whole (or as a whole in each of such rate groups or territories- as the Commission may from time to time designate) will, under honest, efficient and economical management . . , earn an aggregate an-' nual net railway operating income equal', as nearly as may be, to a fair return upon the aggregate value of the railway property of such carriers held for and used in the service of transportation.” (par. 2.)
The recapture and reserve are the readjustment made necessary:
“ Inasmuch as it is impossible (without regulation and control in the interest of the commerce of the United States considered 'S a whole) to establish uniform rates upon competitive traffic which will adequately sustain all the carriers which are engaged in such trafile and which are indispensable to the communities to which they render the service of transportation, without enabling some of such carriers to receive a net railway operating income substantially and unreasonably in excess of a fair return '\pon.the valúe of their railway property held for and us. vl in the service of transportation, it is hereby declared*540 that any carrier which receives such an'income so in excess of a fair return, shall hold such part of the excess,- as here-.. inafter .prescribed, as trustee for, and shall pay it-to, the United States.” (par. 5.)
Thus, the direction in the order here challenged to pay. or reserve the excess over 6 per cent of the amounts earned from 1920 to 1923 by rates established pursuant to Ex parte 74, Increased Rates, 1920, 58 I. C. C. 220, is merely a readjustment of those rates.
. Tenth. The question remains whether the Commission, in valuing the structural property acquired before June 30, 1914, abused its discretion by declining to give effect to the evidence of enhanced reconstruction cost.
The carrier insisted that physically the property had appreciated more' than it had depreciated; and urged the Commission to take as the basic measure of value the “ cost of reproduction new at current prices to the exclusion of everything else, or at least of everything that might tend to a lower value.” (124 I. C. C. 28.) This the Commission declined to do. It gave full effect to increased current market values in determining the value of the land. It gave to the additions and betterments made after June 30, 1914, a value approximating their cost less physical depreciation.
The Commission recognized, as stated in Minnesota Rate Cases, 230 U. S. 352, 434, that the determination of value is “ not a matter of formulas, but there must be a reasonable judgment having its basis in a proper consideration of all relevant facts.” Georgia Ry. & Power Co. v. Railroad Commission, 262 U. S. 625, 630. It states that “it considered and weighed carefully, in the light of its own knowledge and experience, each fact, circumstance and condition called to its attention on behalf of the carrier ” as well as the evidence otherwise introduced; and that “from this accumulation of information we have formed our judgments as to the fair basic single-sum values, not by the use of any formula but after consideration of all relevant facts.” The report makes clear that its finding was the result of an exercise of judgment upon all the evidence; that the Commission accorded to the evidence of reconstruction cost all the probative force to which it deeméd that evidence entitled on the issue of actual value; and that it considered, as bearing upon value, not only the probable cost and the estimated reproduction cost, but also “ descriptions of the carrier, of its traffic, of the territory in which it operates, its history, and summaries of the results of its operation.” (p. 25.)
The difficulties by which the Commission was confronted when requested to apply the evidence of reproduction cost can hardly be exaggerated. In . the first place, the evidence was of such a character that it did
Moreover, the Commission had, through its valuation department, special knowledge of the property of this carrier. It had acquired necessarily in the performance of its many duties the general knowledge, already referred to,
The O’Fallon urged that its large net earnings during the recapture periods and earlier fully established a higher value, independently of the evidence of reproduction cost. This contention ignores the peculiar character of the property. The Railroad, which is owned by the Adolphus Busch estate and family and lies wholly in Illinois, operates about 9 miles of main line from two coal mines also owned by the Busch estate and family, to the tracks of the Terminal Company in East St. Louis. There are 12 miles of yardage tracks, located largely at the Busch mines. While the Railroad is legally a common carrier, it is actually
How long the four mines will continue to be operated was and still is entirely uncertain. Their product is subject to the competition of 221 other bituminous coal mines in Illinois. These, which are all located on other railroads, enjoy low rates to St. Louis. See Perry Coal Co. v. Alton & Southern R. R., 5 Illinois Commerce Commission 461. The vicissitudes of coal mining, the diminishing use of coal since the war because of increased fuel efficiency, the competition of oil as fuel, ánd the growing use of hydro-electric power are matters of common knowledge; as are the diminishing operations during recent years of the Illinois coal mines as compared with the mines ih non-union territory.
This Court has no concern with the correctness of the Commission’s reasoning on the evidence in making its findings of fact, since it applied the mies of substantive law prescribed by Congress and reached its findings of actual value by the exercise of its judgment upon all the evidence, including enhanced constmction costs. Virginian Ry. Co. v. United States, 272 U. S. 658, 665-666; Assigned Car Cases, 274 U. S. 564, 580. We must bear in mind that here we are not dealing with a question of confiscation; that we are dealing, as was pointed out in Smyth v. Ames, 169 U. S. 466, 527, with a legislative question which can “ be more easily determined by a cpmmission composed of persons whose special skill, observation and experience qualifies them to so handle great problems of transportation as to do justice both to the public and to those whose money has been used to construct and maintain highways for the convenience and benefit of the people.”
See Report of Senate Committee reporting S. 3288, Report No. 307, p. 19, 66th Congress, 1st Session: “The Company reserve fund may be drawn upon by the carrier whenever its annual railway operating income falls below 6 per cent of the value of the property. The reserve fund is, of course, the absolute property of the carrier; and the purpose in requiring it to be established and maintained is to give stability to the credit of the carrier and enable it to render more efficiently the public service in which it is engaged.”
The complaint concerns all the structural property and equipment acquired before June 30, 1919. But,.as nearly all of this had been installed before July 1, 1914, the discussion is limited to the property acquired before that date.
Compare Best on Evidence (seventh English edition) §§ 69, 70; Manley v. Georgia, 279 U. S. 1.
See Interstate Commerce Commission v. Union Pacific R. R., 222 U. S. 541, 547; Interstate Commerce Commission v. Louisville & Nashville R. R., 227 U. S. 88, 92; Florida East Coast Ry. v. United States, 234 U. S. 167; New England Divisions Case, 261 U. S. 184, 203.
See Interstate Commerce Commission v. Louisville & Nashville R. R., 227 U. S. 88, 93; Chicago Junction Case, 264 U. S. 258, 263.
See Texas & Pac. Ry. v. Interstate Commerce Commission, 162 U. S. 197; Interstate Commerce Commission v. Alabama Midland Ry., 168 U. S. 144; Interstate Commerce Commission v. Northern Pacific Ry., 216 U. S. 538.
See Florida East Coast Line v. United States, 234 U. S. 167, 187; Central R. R. Co. v. United States, 257 U. S. 247.
Alleged errors of the Interstate Commerce Commission in weighing evidence or drawing inferences therefrom have been urged as grounds for reversal in many cases. This Court has consistently held that the Commission’s decisions as to such matters are not the proper subject for judicial review. See e. g., Cincinnati, &c. Ry. v. Interstate Commerce Commission, 206 U. S. 142, 154; Illinois Central R. R. v. Interstate Commerce Commission, 206 U. S. 441; Interstate Commerce Commission v. Illinois Central R. R., 215 U. S. 452, 470; Los Angeles Switching Case, 234 U. S. 294; United States v. New River Co., 265 U. S. 533; Western Chemical Co. v. United States, 271 U. S. 268; Virginian Ry. v. United States, 272 U. S. 658; Chicago, R. I. & Pac. Ry. v. United States, 274 U. S. 29; Assigned Car Cases, 274 U. S. 564. The following excerpts from recent opinions succinctly express the Court’s position in the matter:— “The courts will not review determinations of the Commission made within .the scope of its powers or substitute their judgment for its findings and conclusions.” United States v. New River Co., 265 U. S. 533, 542. “ To consider the weight of the evidence is beyond our province.” Western Chemical Co. v. United States, 271 U. S. 268, 271. “This Court has no concern with the correctness of the Commission’s reasoning, with the soundness of its conclusions, or with the alleged inconsist
The Puget Sound extension of the Cjhicago, Milwaukee & St. Paul Railway was completed in 1909 at a cost of about $257,000,000. It earned, during fifteen years, little more than operating expenses. As late as 1925, its net operating income was “ only about one-half of 1. per cent on this investment.” Investigation of Chicago, Milwaukee & St. Paul Ry. Co., 131 I. C. C. 615, 617, 619, 621. The upset cash price fixed by the court in the foreclosure proceeding was $42,500,000. Guaranty Trust Co. v. Chicago, M. & St. P. Ry., 15 F. (2d) 434, 443.
Another striking example of the discrepancy often existing between market price or actual value, and reproduction cost is to be found in the case of the Detroit, Toledo & Ironton Railroad, which Mr. Ford purchased in 1920 for $6,800,000. .It was said to have a physical value of between $16,000,000 and $20,000,000. Railway Age, Yol. 69.1, p. 132.
In an order granting, on March 8, 1929, the application of the Nashville, Chattanooga & St. Louis Ry. to abandon its Middle Tennessee & Alabama branch, which had been in operation more than thirty years, the Interstate Commerce Commission said: “The applicant contends that the project was poorly conceived and doomed to failure from the outset.” 150 I. C. C. 539, 540.
“-But cost of reproduction obviously does not measure value in the sense of what a purchaser, would pay for a property. Let the owners of the old Wabash Pittsburgh Terminal put their road upon the market to prove the truth of this assertion.” Homer D. Vanderblue in Railway Age, 1920 — Vol. 68,2, p. 1105.
Motor Bus and Motor Truck. Operation, 140 I. C. C. 685, 727. See Annual Reports of the Commission, 1921, p. 19; 1922, p. 219; 1923, p. 237; 1924, p. 253; 1925, p. 263; 1926, p. 286; 1927, p. 294; 1928, p. 298.
Motor competition has to some extent been a factor in such abandonments. . For instances arising since October 31, 1927, see Abandonment of Potato Creek R. R. Co., 131 I. C. C. 481; 482; Pennsylvania R. R. Co., 131 I. C. C. 547, 548; Grand Rapids and Indiana Ry. Co., 138 I. C. C. 345; Spokane, Coeur d’Alene & Palouse Ry. Co., 138 I. C. C. 722, 723; Illinois Traction, Inc., 145 I. C. C. 20; Western Maryland Ry. Co., 145 I. C. C. 232; Southern Ry. Co., 145 I. C. C. 355; St. Louis-San Francisco Ry. Co., 145 I. C. C. 379, 383; Pere Marquette Ry. Co., 145 I. C. C. 560, 561; Chicago, Rock Island & Pacific Ry Co., 145 I. C. C. 698, 699; Southern Pacific Co., 145 I. C. C. 705, 707. Compare Hill City Ry. Co., 150 I. C. C. 159.
Senator Cummins stated that the cost of living was then from 80 to 100 per cent above prewar, prices. 59 Cong. Rec., Part I, p. 129. See, also, Senate Committee Hearings, Vol. 148, Part II, p. 277; House Committee Hearings, Vol. 232, Part I, pp. 376-377.
Senator Cummins said “ I think there are a great many instances in which the investment accounts are larger than any possible value that could be attributed to the property.” 59 Cong. Rec., Part 1, p. 126. “ My own judgment is, however, that the value of the properties is -less than .the aggregate investment accounts , . .” pp. 135-136. For other-expressions of opinion to the same effect see pp. 224, 228, 905. Senator Cummins stated' that the aggregate of the investment accounts was about $19,000,000,000. (p. 127.) See also p. 130. Compare Mr. Esch, 59 Cong. Rec., Part 4, p. 3269.
The Commission says (124 I. C. C. 39): “ In this connection it is significant that when the legislation of 1920, of which § 15a is a part, was under congressional consideration there was offered in behalf of the carriers a proposed bill in which their recorded investment, in road and equipment was made the sole element in the determination of the rate base. It is also worthy of note that when the legislation of 1920 was under such consideration a representative of this commission pn September 26, 1919, in response to a question, publicly informed the congressional committee that he knew of no warrant for an assumption ' that the commission will -base the value of the property wholly or in part on present prices.’ ”
The investment in road and equipment as stated on the books of the Kansas City, Mexico and Orient R. R. Co. (of Kansas) as of June 30, 1919, was $22,190,935.- The final valuation by the Commission as of that date was $6,453,528. After that date $1,064,782 was expended for additions and betterments, making a total value $7,518,310. The Kansas City, Mexico & Orient of Texas (with expenditures for additions) was valued at $6,854,522. Kansas City,
See note 13.
Excess Income of St. Louis and O’Fallon Ry. Co., 124 I. C. C. 3, 32.
Contemporary opinion of the railroads to this effect was expressed in their behalf in the hearings held before the Interstate Commerce Commission on March 22-24, 1920 (Hearings, In re: § 422 of the Transportation Act, Ex parte 71, p. 134).
“The writer of this report is firmly convinced that when the Government assumed the operation of the railways they were, taken as a whole, earning all that they should be permitted to earn; but, in the inevitable distribution of these earnings among the various railway companies, the railways which carried 30 per cent of the traffic were earning so little that they could not, by any economy or good management, sustain themselves.” Senate Reports, No. 304, Vol. 1, 66th Cong., 1st Sess. A rate base which reflected the then increase in price levels over 1914 would have yielded about $700,000,000 more than the income of the test period
Senator Kellogg in the debate on the bill justified the 5% per cent return by.’the same argument as used by the Committee in reporting the bill: “Again it must be remembered that 5% per cent today is not equal to 5% per cent five years ago. The great inflation of currency and the general rise in all commodities have made a dollar very much less in purchasing power.” 59 Cong. Rec., Part 1, p. 224. The same recognition of increased costs had been given as a justification for the liberal return authorized by the Federal Control Act. 1916 and 1917, two of the three years taken as a basis for measuring the return, were the most prosperous in the history of the railroads. See 56 Cong. Rec., Part II, p. 2021.
Mr. Esch/ra submitting the conference report to the House, said: “ Investors want something definite and fixed upon which they can reckon. The provisions of section 422 give that stability, that standard which I-trust, will-encourage investment . . .” 59 Cong. Rec., Part 4, p. 3269. The Commission points out (p. 32): “In other words, assuming a static property [valued at $18,000,000,000] there would have been a gain of 23.4 billions in 1920, a loss of 6.3 billions in 1921, a further loss of 6.8 billions in 1922, and a gain again of 3 billions in 1923. These huge ‘profits’ and ‘losses’ would have occurred without change in the railroad property used in the public service other than the theoretical and speculative change derived from a shifting of general price levels.”
“During the seven years, 1920 to 1926, inclusive,'there was an approximate net investment in additions and betterments and .new construction of 4 billions. These were paid for at then current prices, aE above, in many cases far above, present prices. Assuming that there has since been an average decline in «unit price level of 25 per cent, a valuation under the current reproduction cost doctrine would wipe out one biEion of that additional investment. The effect upon any raEroad entirely or largely constructed during the period 1920 to 1926 may be imagined.” (p. 32.)
The value of the plant is “ a result of the rates rather than a basis for rates. ... If rates are established upon a basis, of reproduction cost, value wiE tend to approximate such cost, but this wEl be through the operation of economic law and not because a certain figure has been decreed as value.” F. G. Dorety, “ The Function of Reproduction Cost,” 37 Harvard Law Rev. 173, 189. Compare Monongahela Navigation Co. v. United States, 148 U. S. 312, 328; C. C. C. & St. L. Ry. Co. v. Backus, 154 U. S. 439, 445; 1 Taussig, Principles of Economics, 115; Laughlin, Elements of Political Economy, pp. 75-77.
Large, increases, bad been made theretofore. A general rate increase of 5 per cent in 1914, Five Per Cent Case, 31 I. C. C. 351; 32 I. C. C. 325; 15 per cent in 1917, Fifteen Per Cent Case, 45 I. C. C. 303; and 25 per cent in 1918, General Order of Director General, No. 28.
They had been raised 40 per cent before.
See Rate Reductions, House Doc. No. 115, 67th Congress, 1st Session, e. g., p. 7: “ Reductions in all rates on iron ore throughout the so-called eastern territory, including generally points east -of the Mississippi and north of the Potomac and Ohio Rivers, including, of course, ex-Lake ore moving from Lake Erie ports. These reductions will eliminate all increases effected under Ex parte 74, and it is conservatively estimated the amount will reach in round figures $5,000,000 per year.” For instances of important reductions made by the carriers voluntarily, see Smelter Products from Nevada & Utah, 61 I. C. C. 374; Grain from Illinois Points to New Orleans, 69 I. C. C. 38; Copper-Duquesne Reduction Co. v. Pennsylvania R. R. Co., 96 I. C. C. 351, 354-355.
Railway Age, 1924 — Vol. 76.1, p. 726.
Letter of Chairman Hall to Senator E. D. Smith, May 28, 1924, 68 Cong. Rec., Part 10, p. 10275.
Revenue per— 1921 1922 1923 1924 1925 1926 1927
Ton mile (cts.)...... 1.294 1.194 1.132 1.132 1.114 1.096 1.095
Passenger mile (cts.). 3.093 3.037 3.026 2.985 2.944 2.941 2.901
Annual Report of the Interstate Commerce Commission for 1928, p. 115. It is impossible to say to what extent this persistent shrinkage has been the result of miscellaneous rate adjustments and to what extent to fluctuations in character of traffic. Statistics of Railway’s in the United States, I. C. C, 1927, p. X.
The fair return for the first two years was fixed by Congress at 5% per cent, and the Commission was authorized to add one-half of one per cent for improvements, betterments and equipment. This ‘additional allowance was granted in Ex parte 74, 58 I. C. C. 220. For the rest of the period it was prescribed by the Commission at 5% per cent. Reduced Rates, 1922, 68 I. C. C. 676, 683. The rate of return calculated on Ex parte 74 value of the railroads, ás a whole brought down to date, was:
1921 1922 1923 1924 1925 1926 1927 1928
Percent........ 3.2 4.0 5.1 4.9 5.5 5.8 5.1 5.5
The return on that basis in the Southern group has in most years exceeded that prescribed as fair. In the Eastern group the return has since 1924 exceeded that prescribed. In the Western groups the prescribed return appears never to have been reached. Compare Bonbright, “Economic Merits of Original Cost and Reproduction Cost,” 41 Harvard Law Review 593, 618.
Trunk Line & Ex-Lake Iron Ore Rates, 69 I. C. C. 589, 610-611; Import and Domestic Rates on Vegetable Oils, 78 I. C. C. 421; Grain & Grain Products from Kansas and Missouri to Gulf Ports, 115 I. C. C. 153, 164; Grain & Grain Products to Eastern Points, 122 I. C. C. 551, 563-4; Lake Cargo Coal, 139 I. C. C. 367, 392-5. See Rates from Atlantic Seaboard, 61 I. C. C. 740; Salt from Louisiana Mines, 66 I. C. C. 81; Coal to Kansas City, 66 I. C. C. 457; Coal from Wyoming Mines, 68 I. C. C. 254; Coal from Southwest, 73 I. C. C. 536; Transcontinental Cases of 1922, 74 I. C. C. 48; Canned Goods from Pacific Coast, 132 I. C. C. 520; Cement in Carloads, etc., 140 I. C. C. 579, 582. Compare Henry Wolf BiHé, “ Power of the Interstate Commerce Commission to Prescribe Minimum Rates,” 36 Harvard Law Rev. 5, 30.
See Smelter Products from Nevada and Utah, 61 I. C. C. 374; Coal from Illinois to Arkansas, Louisiana and Texas, 68 I. C. C. 1; Coal from Kentucky, Tennessee and West Virginia, 68 I. C. C. 29; Rates from Chicago via Panama Canal, 68 I. C. C. 74; Grain from Illinois Points to New Orleans, 69 I. C. C. 38; Trunk-Line and Ex-
Compare F. G. Dorety, “ The Function of Reproduction Cost,” 37 Harvard Law Review 173, 194.
Transportation Act, Feb. 28, 1920, c. 91, § 500, 41 Stat. 456, 499: “It is hereby declared to be the policy of'Congress to promote, encourage, and develop water transportation, service, and facilities in connection with’ the commerce of the United States, and to foster and preserve in full vigor both rail and water transportation.” Chicago, Rock Island & Pacific Ry. Co. v. United States, 274 U. S. 29, 36. Compare Transcontinental Cases of 1922, 74 I. C. C. 48; United States War Department v. Abilene, etc. Ry. Co., 77 I. C. C. 317; 92 I. C. C. 528; Houston Cotton Exchange & Board of Trade v. Arcade, etc. Corp., 87 I. C. C. 392; 93 I. C. C. 268; Reduced Commodity Rates to Pacific Coast, 89 I. C. C. 512; Southern Class Rate Investigation, 100 I. C. C. 513; Commodity Rates to Pacific Coast Terminals, 107 I. C. C. 421; Consolidated Southwestern Cases, 123 I. C. C. 203; Canned Goods from Pacific Coast, 132 I. C. C. 520; Tinplate to Sacramento, 140 I. C. C. 643; American Hawaiian S. S. Co. v. Erie R. R. Co., 152 I. C. C. 703.
The Panama Canal Act, Aug. 24, 1912, c. 390, § 11, 37 Stat. 566, now incorporated in the Interstate Commerce Act as par. 10 of § 5 (see Transportation Act, Feb. 28, 1920, c. 91, § 408,41 Stat. 482), prohibits any railroad from having any interest “ in any common carrier by water operated through the-Panama Canal or elsewhere with which said railroad . . does or may compete for traffic.” Compare Application of United States Steel Products Co., 57 I. C. C. 513; 77 I. C. C. 685; 151 I. C. C. 577.
The Cape Cod Canal purchased pursuant to Act of Jan. 21, 1927, c. 47, § 2, 44 Stat. 1015, resulted in the .elimination of tolls and an immediate large increase in vessel traffic. “The use of the canal under present conditions will undoubtedly operate to reduce freight rates.” Report of Chief Engineers to the Secretary of War, Oct. 2, 1928, p. 76. The Chesapeake and, Delaware Canal was acquired and improved pursuant to Act of March 2, 1919, c. 95, § 1, 40 Stat. 1277, and Act of Jan. 21, 1927, c. 47, § 3, 44 Stat. 1016. “ The opening of the canal at sea level to navigation within the limits of the dimensions authorized under the project has resulted in.increasing the number and size of vessels passing through. New vessels to take advantage of the increased facilities are being constructed. Freight rates have been lowered as a result of the increased competition between carriers. Its effect on rail rates is to hold them at a minimum.” Annual Report of Chief of Engineers to the Secretary of War, Oct. 2, 1928, pp. 408, 410. See Proposed Intracoastal Waterway from Boston, Massachusetts to the Rio Grande, Act of March 3, 1909, c. 214, § 13, 35 Stat. 822; Letters of Secretary of War transmitting to Congress letter^ from the Chief of Engineers on Surveys, House Doc. 391, January 5, 1912, 62 Cong., 2d Sess.; House Doc. 229, September 11, 1913, 63 Cong., 1st Sess.; House Doc. 233, September 11, 1913, 63 Cong., 1st Sess.; House Doc. 610, January 17, 1914, 63 Cong,, 2d Sess.; House Doc. 1147, June 3, 1918, 65 Cong., 2d Sess.; House Doc. 238, April 12, 1924, 68 Cong., 1st Sess.; Senate Doc. 179, December 8, 1924, 68 Cong., 2d Sess.; House Doc. 586; December 14, 1926, 69 Cong., 2d Sess.
The river improvements on the Ohio, the Mississippi and the Warrior rivers, and the creation of the government owned Inland Waterways Corporation to operate barge lines has been followed by legislation requiring the railroads to join in through routes and joint rates and providing for differentials. Act of May 29, 1928, c. 891, § 3 (e), 45 Stat. 980. Although barge lines are still limited in their sphere of operation, the through routes with differentials applied for by the Inland Waterways Corporation and ordered by the Commission pursuant to the direction of Congress cover a large part of the United States. Ex parte 96, 153 I. C. C. 129, 132. Compare Annual Report Inland Waterways Corporation, 1928.
For an instance of the effect of harbor improvement in increasing coastwise shipping and thereby reducing rail rates, see Annual Report of the Chief of Engineers (1928) upon Miami, p. 722: “The completion of the 20 foot project has had a pronounced effect on railroad and water-transportation rates.” The domestic'water-bprn'e commerce on the Atlantic, Gulf, and Pacific Coasts rose from 114,557,241 tons in 1920 to 231,530,937 tons in 1927. The tonnage on the rivers, canals and connecting channels rose from 125,400,000 in 1920 to 219,000,000 in 1927. Annual Report of the Chief of Engineers for 1928, Commercial Statistics, p. 3. On the New York State canals the tonnage increased steadily from 1,159,270 in 1918 to 2,581,892 in 1927. Commerce Year Book, 1928, Yol. 1, p. 617. The tonnage of the shipping occupied in' the coastwise and internal trade increased from 6,852,000 tons in 1914 to 9,743,000 tons in 1928. p. 619.
The competition by motor has, in large measure, been stimulated and made possible by the grants by Congress since 1914 of federal aid to highway construction. The highways completed , with federal aid! to June 30, 1928, aggregate 72,394 miles. The aggregate mileage comprised in what is designated as federal aid highway systems is 187,753 miles. Report of Chief of Bureau of Public Roads, Sept. 1, 1928, pp. 3, 7.
The passenger miles per mile of road dropped gradually from 199,708 in 1920 to 141,800 in 1927; the passenger revenues from $1,286,613,000 in 1920 to $974,950,000 in 1927. 42 Annual Report I. C. C., Dec. 1, 1928, pp. 115, 117. This shrinkage continued throughout 1928.
For an example of reduction in carload traffic, see note 45.
The less-than-carload freight on all the railroads of the United States shrank from 44,338,000 tons in 1923 to 38,440,000 tons in 1927. In the Eastern District (including the Pocahontas region) it shrank from 23,321,000 tons in 1923 to 19,363,000 tons in 1927. Statistics of Railways in the United States, 1927 [I. C. C.], p. XVII. This reduction has continued in 1928.
“ The volume of general cargo carried in United States vessels, particularly in United States intercoastal traffic, has been increasing from year to year.” Annual Report of Governor of Panama Canal for 1928, p. 12.
“ Like all other western lines we feel rather severely the effect of Panama Canal competition.” J. S. Pyeatt, president, Denver & Rio Grande Western Ry., Railway Age, 1926 — Vol. 80.1, p. 10.
Class and Commodity Rates for Transshipment via Panama Canal, 68 I. C. C. 74; Reduced Rates from New York Piers, 81 I. C. C. 312, 315; Reduced Commodity Rates to Pacific Coast, 89 I. C. C. 512 Reduced Rates to Pacific Coast Terminals, 107 I. C. C. 421. Compare American Hawaiian S. S. Co. v. Erie R. R. Co., 152 I. C. C. 703, 705, 707.
“ Shortly after the opening of the Panama Canal, a rate of $10.90 per ton was established on copper, lead and zinc smelter products from certain far west mines to the eastern refineries for movement by rail to the Pacific Coast and thence by water through the canal. This forced a reduction in all rail rates from the same points to New York; first from $22.50 per ton to $16.50 per ton, and then to $12.50 per ton which is the present rate.” Brass, Bronze and Copper Ingots, 109 I. C. C. 351, 355. Compare Eastbound Tariffs, San Francisco and Los Angeles to Kansas City and Chicago, Agent Countiss
A striking illustration of the effect of Panama Canal competition is furnished by the reduction in proportional rates made by the Illinois Central R. R. Co. to New Orleans, May 31, 1928, on shipments via the Redwood (steamship line) to California in order to place manufacturers in the Chicago District on a parity with those in the Pittsburgh-District shipping via the Atlantic seaboard. The domestic rate on iron and steel from Chicago to New-Orleans was 55 cents; and the proportional rail and water rate to California had been 39% cents. It was reduced to 31 cents, leaving the domestic rate unchanged. Tariff I. C. C. No. A-10314.
In 1914, 158, 327, 451 tons were transported by rail and 17,601,661 by water; in 1927, 152,872,882 by rail and 39,998,562 by water. “ The advantages of the utilization of the Ohio and its connecting waterways have been amply demonstrated and the rail carriers should realize that they cannot continue to handle by all rail routes much traffic which- can be more economically transported by all water or rail-and-water routes. The interveners express fear that lower rates' over a rail-and-water route will jeopardize the present rate structure, but assuming such fear to be well founded, that fact would not justify us in withholding approval of any plan which promises to reduce substantially the cost of necessary transportation.” Construction of Branches by P. L. $ W. Co., 150 I. C. C. 43, 52, 55,
The establishment of barge lines, especially when followed by the establishment of through rail and barge line routes, tends both to reduce rail rates and the volume of rail tonnage. See Inland Waterways Corporation v. Alabama G. S. R. R., 151 I. C. C. 126; Coal and Coke from Western Kentucky, 151 I. C. C. 543, 549; Rates on Fertilizer, etc., Within Florida, 151 I. C. C. 602, 608. Compare Vanderblue, “ The Long and Short Haul Clause Since 1910,” 36 Harvard Law Review 426, 437. As to the development of the barge lines, see Annual Report of the Inland Waterways Corporation for 1928.
For instances on Boston & Maine R. R., compare authority I. C. C. Nos. A-2535, 2540, 2565, 2597, 2600 with issue I. C. C. Nos. A-2556, 2657, 2600, 2654; M. D. P. U. 1706, 1717, 1719, 1728, 1729, 1730; N. H. P. S. C. 1166. Many illustrations of this are afforded by applications made under § 6 of the Interstate Commerce Act for permission, because of motor competition, to change rates on less than 30 days’ notice. In the period from Nov. 23, 1928 to March 19, 1929, six such applications w’ere made by the Boston & Maine Railroad; five by the New York, New Haven & Hartford, and two by the Boston & Albany. In one instance the rate was reduced to less than one-half; in another to just one-half; and'in the others by varying percentages. The reductions related, among others, to ar-. tides as bulky as crushed stone and lumber, and as heavy as scrap iron and wire rods. Among such applications made by western lines in 1928, are those of the Southern Pacific and Atchison for carload rates on sugar (Nos. 87,723, 87,724) and on dried fruits (86,227); and that of the Southern Pacific for carload rates on iron or steel pipe (No. 90,219).
In a paper delivered before the Mid-West Transportation Conference, R. C. Morse, general superintendent, Peimsylvania R. R., said: “ The truck has proved more economical than the box car for the transportation of less than carload freight for short hauls and, under special circumstances, for comparatively long hauls.” Railway Review, 1925—Vol. 76, p. 1116.
In an address before the Western Railway Club, T. C. Powell, president, Chicago & Eastern Illinois Ry., said: “ The great change, therefore, that has taken place since 1920 has been this growth of automobile traffic, and by this I mean not simply the ownership of
For further comment on the motor bus and motor truck as competitive and auxiliary instruments of transportation, see Railway Age, Vol. 71.1, p. 432; Vol. 75.2, p. 995; Vol. 76.1, p. 319; Vol. 77.1, p. 275; Vol. 78.2, p. 1513; Vol. 79.2, p. 1017; Vol. 80.1, pp. 12, 547, 918; Vol. 80.2, pp. 1401, 1981; Vol. 81.1, pp. 153, 381; Vol. 81.2, p. 801; Vol. 82.2, p. 1651; Vol. 83.1, p. 601; Vol. 83.2, p. 753; Vol. 84.2, pp. 1025, 1315; Vol. 85.1, p. 399; Railway, and Locomotive Engineering, Feb., 1928, p. 37; Engineering News-Record, Vol. 96.1, p. 305; Railway Review, Vol. 77, p. 604.
Petroleum and Petroleum Products from Oklahoma (I. & S. 3144, April 6, 1929), 153 I. C. C. 483, 486.
In the period from 1914 to 1927 the average freight haul for the individual railroad increased from 144.17, to 172.11 miles; and the average haul,'treating all the railroads ás a- single system, increased from 255.43 to 314.75 miles. Annual Report of the Interstate Commerce Commission for 1928, p. 114.
See e. g. Trunk-Line & Ex-Lake Iron Ore Rates, 69 I. C. C. 589; Reduced Rates from New York Piers, 81 I. C. C. 312, 317; Sugar Cases of 1922, 81 I. C. C. 448; Vinegar Rates from Pacific Coast, 81 I. C. C. 666; Iron from Southern Points, 104 I. C. C. 27; Reduced Rates on Commodities to Pacific Coast Terminals, 107 I. C. C. 421, 436; Pacific Coast Fourth Section Applications, 129 I. C. C. 3, 23. Compare Vanderblue, “ The Long and Short Haul Clause Since 1910,” 36 Harvard Law Rev. 426, 437.
In confiscation cases the term “used and useful” had been commonly employed in makingT-ihe valuations. The specific provision, requiring efficiency and economy, was doubtless inserted in § 15a because the Commission had theretofore expressed a doubt as to the extent to which it could, in determining the reasonableness of rates, .consider the efficiency and economy of the management. ‘ Compare Advances in Rates—Eastern Case, 20 I. C. C. 243, 278-280. This provision must be read in the light of paragraph (5) of § 20, also added to the Interstate Commerce Act by Transportation Act, 1920, which directed the Commission to prescribe what depreciation charges should be allowed as a part of the operating expenses.
Harry Gmmison Brown, “Present Costs,” p. 6. (Reprinted from Public Utilities Fortnightly, March 7, 1929); F. G. Dorety, “ The Function of Reproduction Cost,” 37 Harvard Law Rev. 173, passim; James C. Bonbright, XL Quarterly Journal of Econofnics, pp. 295, 317. Compare 42 Proceedings, Am. Soc. of Civil Engineers, 1916, pp. 1719, 1772. Compare City of Spokane v. Northern Pacific Ry. Co., 15 I. C. C. 376, 393-4; Goddard, “ The Evolution of the Cost of Reproduction as the Rate Base,” 41 Harvard Law Rev. 564, 572; Robinson, “Duty of a Public Utility to,Serve at Reasonable Rates: The Valuation War,” 6 No. Car. Law. Rev. 243, 256; “Railroad Valuation" by Leslie Craven, Railway Age, 1923—Vol. 75.2, pp. 807, 808.
In a paper delivered before the Western Society of Engineers, F. J. Scarr, supervisor motor service, Pennsylvania R. R., said: “We are conducting inefficient terminal operations through inadequate facilities, and by means of antiquated methods. . . . Before the general acceptance of the motor vehicle as a dependable means of transportation, we had only the horse drawn vehicle available for the movement of freight over the highways. The limited effective radius of action, slow speed, and low capacity, of this instrument forced the railroads to place on track freight stations as near the centers of production and consumption as possible, almost regardless of cost or future expansion requirements. This factor, with reckless competition between carriers, influenced the railroads to engage in what approaches retail transportation, by . the establishing of innumerable small stations and private sidings. It is my firm conviction that had the motor truck, with its greater radius of action, greater capacity, greater'flexibility, and greater endurance, been available, the carriers would have developed terminals better adapted to take advantage of these characteristics.” Railway Review, 1926—Vol. 78, p. 790.
"'time is fast approaching when railroads will stop buying expensive downtown city property for freight houses, and will, by the use of trucks, handle freight' from outside and less costly freight
C. A. Morse, chief engineer, Chicago, Rock Island & Pacific Ry., in an address before the Western Society of Engineers in 1926, said: “ Comparatively little has been done in the reduction of grades and today a great majority-of the trunk line railroads in this country are operating over grade lines-that were considered economical 50 or -75 years'ago. These railroads were built in the days before steam shovfels and other mechanical grading devices had been developed, and when rock was handled with hand drills, black powder and carts. The result was that grading was very expensive and they sought to minimize it. . . . The reduction in the ruling grade and in the rate of curvature will result in'both cheaper transportation and a saving in time.' . . . During the last twenty-five years, it has been the practice of most railroads to reduce their grades in connection with the construction of a second track, but unfortunately additional main track has been constructed on many- of the older roads before the value of the lighter ruling grade was appreciated. The reduction of grade means practically the rebuilding of such lineé and the expense of this together with the interruption to traffic while it is being done has prevented much of this from being carried out, for unless the subject is thoroughly investigated, we are apt to consider it as impracticable. . . . Simply maintaining in first class condition a roadway that, as far as grades and alinement are concerned, is of a type such as was constructed a half century ago, is not maintaining a modem railroad. . . . With the great majority of the railroads operating over lines that have the grade line and curvature of a half century ago, the big job is to modernize the roadway.” Railway Age, Vol.’ 80.1, p. 279. See also Engineering NewsrRecord, Vol. 96.1, p. 309; Vol. 96.2, p. 803; Railway Review, Vol. 72, p. 937; Vol.. 73, p. 124; Vol 78, p. 187; Railway Age, Vol. 81.1, p. 181.
"Curves, it is a matter of long record, have an important relation to speed'of trains and cost of transportation as well as to track maintenance, while very sharp curves have' a relation to safety of traffic. ‘ It has been found that in. a 10-year period, with no’ rail renewals on 1 deg. curves, the rails were renewed once on 2 deg. curves’ once or twice on 3 deg., and twice oh 4 degree curves. Furthermore, track displacement by -traffic has necessitated double or triple the
See Advance in Rates—Eastern Case, 20 I. C. C. 243, 271: “ Assume that a railroad is originally constructed over a mountain, it being mote economical to haul the traffic up and .down the steep grades than to incur the great outlay, which would be required by constructing ¿ tunnel. With the development of traffic the time comes when this mountain must be pierced, and a^tuhnel is accordingly-constructed at a large expenditure. Whgn"ffie tunnel is put into service and the line over the mountain abandoned the cost Of the tunnel is added and the cost of the abandoned railroad subtracted from construction cost, so that, as shown by the books, the cost of construction is the -same as though the tunnel had been built at the outset.”
“ Tracks, though, are just as important as cars and locomotives in the railroads’ program of reducing, costs by moving heavier trains faster. The New York Central has just finished spending more than $20,000,000 to get freight trains around Albany and across the Hudson river without having to lower them to the river level and pull them up again. The Illinois Central is spending $16,000,000 for a straighter, flatter and mor.e economical line through Illinois and Kentucky, crossing the Ohio river. The Southern Pacific is spending a similar sum to build its Natron cut-off in Oregon and California to get a better grade over the Siskiyous. The Central of Georgia is spending $5,000,000 to relocate and rebuild its line between Columbus, Ga. and Birmingham. The Central of New Jersey is putting a four-track steel trestle three miles across Newark Bay, a $10,000,000 job.. The Louisville & Nashville is spending $5,000,000 or more to raise and move its Gulf Coast line out of the reach of storms. The Southern Ry. is*--spending a couple of millions to shorten the haul and cut the grades for coal trains moving out of the Appalachian fields to the South Atlantic. These projects represent the kind of improvement that' will make it possible in the future to carry on the same line of development that American railroads have followed whenever and wherever they could. Each will pay for itself in reduced transportation costs, and along with hundreds of other improvements will make possible lower rates.” Railway Review, 1925—Vol. 77, p. 522.
“ If it is. reasonable to expect’ that large amounts of heavy freight will be offered, the question of grades to be adopted is of paramount importance and should be'given most careful consideration, and the lightest grades possible should be adopted, even if some increase in
"As an illustration of the importance of light grades to increase train loads and thereby reduce, cost of movement, we may cite the fact that about three times as much tonnage can be hauled on a grade of two tenths, or 10.6 feet per mile, as on a grade of one per cent, or. 52.8 feet per mile, with the same expenditure of energy. On a grade of four-tenth only half as much tonnage can be hauled as on a level with the same power.” F. S. Stevens, engineer maintenance of way, Phila. & Reacting Ry., Railway Review, 1923 — Vob 72, p. 937.
Alba B. Johnson, president of the Railway Business Association, testifying before the Senate Committee on Interstate Commerce in 1924, said: “ The heavier locomotives and ears and the longer trains brought about a new standard of rails, road-bed, bridges and other structures. If it were possible to show on a chart the rise in cost of replacing the railroad as a whole we would still not be telling the whole story, because the increase would represent not only a higher level of wages and prices but a, change in the character of the plant. Rails and ballast are heavier, frogs and switches more powerful; bridges stronger. Capacity of track was increased by installation of signal
“A glance at the operating returns of the railways of this country will show that those roads which have added most liberally to their facilities in recent years are today making the best showings.” Railway Age, 1921 — Vol. 71.2, p. 1295.
The investment account of the railroads of the United States increased between December 31, 1919 and December 31, 1927, $5,-152,751,000 — that is about 25 per cent. Nearly all of that sum was expended in improving the road, terminals and shop facilities and in replacing outworn and obsolete equipment. During that period the operating ratio improved greatly. The percentage of operating revenues consumed in the several years by operating expenses was: 1920, 94.38 fer cent; 1921, 82.71 per cent; 1922, 79.41 per cent; 1923, 77.83 per cent; 1924, 76.13 per cent; 1925, 74.10.per cent; 1926, 73.15 per cent; 1927, 74.54 per cent. The improvement in the operating-ratio (after the 1920 rate increase) was due in large measure to the improvement of the railroad plant. This made possible, among
“There are numerous cases where the unit fuel consumption of locomotives that represented good practice five or six years ago has been reduced almost one-half by locomotives of thoroughly modern design. This saving alone goes far toward paying a return on. the additional investment required to produce' a' thoroughly modem traveling power plant.” Railway Age, Vol. 82.1, p. 171.
“As a result of intensive development and improvement, it is not unheard of for a modem locomotive to handle 80 per cent more ton-miles per. hour on 50 per cent of the unit fuel consumption formerly considered good locomotive performance.”' Railway Age, Vol. 84.1, p. 659. See, also, Railway Age, Vol. 72.2, pp. 1295, 1686; Vol. 79.1, p. 256; Vol. 83.1, p. 45.
Ralph Budd, president of the Great, Northern Ry., in an address delivered in 1927, said: “ It is-just beginning to be realized that while in principle the steam locomotive is the same as it was a few years ago, the efficiency of the locomotive, as exemplified by the modem type, has been practically doubled, measured in ton-miles of transportation per unit of fuel consumed.” Railway Age, Vol. 83.1, p. 250. See, also, Railway & Locomotive Engineering, Nov., 1927, p. 326; Railway Age, Vol. 78.1, p. 26,
“By producing more ton miles of'transportation per hour it reduces the total number of locomotives required; it postpones the time when increased investment in tracks and most other'fixed properties to increase capacity will be necessary; it reduces the number of
See Transactions of American Society of Mechanical Engineers (1921), Vol. 43, p. 334; Railway Age, Vol. 78.1, p. 26; Vol. 81.1, p. 487; Vol. 82.1, p. 928; Vol. 83.1, p. 322; Vol. 84.1, p. 659; Vol. 84.2, p. 1153; Railway and Locomotive Engineering, Feb., 1927, p. 42; Nov., 1927, p. 326; Feb. 1928, p. 41; Railway Mechanical Engineer, July, 1927, p. 405; Railway Review, Vol. 77, p. 521. Compare 15 The Commonwealther, No. 2 (April, 1929), pp. 14, 19.
“ There has been a steady development in the track structure in recent years. Rail of 75-lb. and 85-lb. sections have given way to that of.110-lb., 115-lb. and 130-lb. on many divisions; cinder ballast has been replaced by gravel and gravel by stone; stronger joints have been installed and more tie plates, rail- anchors and other accessories used. At the saíne time and in spite of these improvements the impression remains among • those most directly in touch with maintenance work that the roads can still afford to go-much further in this direction with economy.” Railway Engineering and Maintenance, 1926—Vol. 22, p. 174. See, also, Ibid., p. 190.
Rail of 85 lb. section or lighter was the type most commonly used prior to 1914. Railway Age, 1921—Vol. 70.2, p. 998. 68.8 per cent of the 2,806,930 tons of rail rolled in the United States in 1927 was 100 lb. section or heavier. Railway Age, 1928—Vol. 84.2, p. 900. See, also, Railway Age, Vol. 71.1, p. 413; Vol. 78.1, p. 181; Vol. 79.1, p. 393; Railway Review, Vol. 74, p. 101.
“The American Railway Association has announced that new specifications increasing the length of' standard rails from 33 to 39 ft. have been approved by that organization. This change will result in a 16 per cent reduction in the number of rail joints and a saving of about one-sixth of the total of bolts, nuts, angle bars and spring washers now required.” Engineering News-Record, 1925—Vol. 95.2, p. 816. .
“ The rail anti-creepers thus saved 26,400 hours°of labor on this thirty mile stretch in one year entirely aside from the saving arising from the lessening of damage to rail, fastenings, and equipment caused by wide expansion and uneven line' and surface where the rail was permitted to creep. As a result of the test the entire track was securely anchored and the practice inaugurated of anchoring all double track and whatever single track showed a tendency to creep.” Railway Engineering and Maintenance, 1923—Vol. 19, p. 114.
See Engineering News-Record, 1925 — Vol. 94.2, p. 844; Railway Engineering and Maintenance, 1926 — Vol. 22, p. 15.
See Engineering News-Record, 1925 — Vol. 94.2, p. 674; Vol. 95.2, p. 958; Railway Age, 1928 — Vol. 84.1, p. 3.
In noting that the Chicago & Northwestern Railway is replacing a bridge which, “ while still as good as the day it was built,” is too light for the heavier loads now being carried, the Railway Age observes, “ This is characteristic of many units of railway construction which, if' properly maintained, show little or no evidences of wear but must give way just as truly as though they wore out.”, (1924 — Vol. 77.2,. p, 918.)
“More efficient pumping equipment is rapidly replacing antiquated machinery.” Railway Engineering and Maintenance, 1926— Vol. 22, p. 132. See, also, Railway Age, 1928 — Vol. 84.2, p. 1329.
“ The improvement in equipment and in methods of locating .signals to meet the requirements of modern train operation, have to a great extent rendered obsolete much of the automatic signaling placed in service 20 years or more ago.” Railway Age, 1927 — Vol. 83.2, p. 1144.
“An investigation made by one railroad a few years ago disclosed the fact that the retirement of a large number of ears of all-wood construction, and their replacement with new cars of steel or steel underframe construction, would effect a saving in maintenance alone which in five years it was estimated would amount to about 68 per cent of the entire cost of the new equipment. ... A thorough study of the economics of freight car maintenance and operation today Would lead to. equally startling conclusions with respect to the 300,000 or 400,000 weak and unsuitable freight cars which.are still in service.” Railway Age, 1921 — Vol. 1.1, p. 52, 53. See, also, Railway Age, Vol. 70.1, p. 490; Vol. 72.2, p. 1515; Vol. 73.2, p. 645; Vol. 74.2, p. 989; Vol. 75.2, p. 1023; Vol. 78.2, p. 1443; Vol. 79.1, p. 186; Vol. 80.1, p. 462; Vol. 80.2, p. 1301; Vol. 82.2, p. 1556; Vol. 85.2, p. 916. Railway Review, Vol. 72, p. 1073; Vol. 77, p. 522; Vol. 78, p. 767.
“ The advent of the overhead, electric traveling crane, as well as the modern smoke exhausting devices and other such improvements, have thrown many of the older type buildings into the obsolete class. ... It is very difficult to, add modern facilities to an existing plant which is designed and constructed without the contemplation of such added facilities. . . . It is impossible to install crane runways and other labor-saving devices in existing buildings, due to lack of clearance and insufficient strength in the existing structures.” Railway Review, 1921 — Vol. 68, pp. 449, 450.
“ The enlargement of locomotive terminal facilities and the modernization of locomotive terminal equipment is admittedly the most.
“ These are days Of rapid improvement in methods, in which many facilities become obsolete long bgfore their normal service life has been reached. This is particularly true of terminal facilities.” Railway Age, 1927 — Vol. 83.2, p. 966. See, also, Railway-Age, Vol. 66.2, p. 994; Vol. 68.2, p. 1702; Vol. 69.2, p. 729; Vol. 7:1.2, p. 890; Vol. 76.1, pp. 269, 314; Vol. 76.2, p. 1494; Vol. 78.2, p. 1071; Vol. 83.1, p. 249; Railway Review, Vol. 72, pp. 112, 495; Vol. 77, p. 522.
“ The real terminal problem, therefore, is that -of providing facilities that will enable the railways to effect some reduction in the enormous investment in idle locomotives now held at terminals.” Railway Review, 1923 — Vol. 72, p. 176. See, also, Railway Review, Vol. 70, p. 344; Railway Age, Vol. 68.2, p. 1745; Vol. 74.2, p. 1354; Vol. 75.2, p. 1141.
“ It is said that' any machine that will run ’ is good enough for a railroad shop and while most railroad men realize the falsity of this statement, it is seemingly borne out by the large number of obsolete, worn-out machines now in use.” Railway Age, 1921 — Vol. 71.1, p. 1.
“Without doubt, railroad net earnings are appreciably reduced by the many obsolete and inefficient machines now used in railroad shops and enginehouses;” Railway Age, 1923 — Vol. 74.1, p. 211.
“ The tools to be seen on any trip of inspection through your own shops or those of other roads, are in many cases a generation outgrown.” Railway Review, 1924 — Vol. 74, p. 733. To the same effect, see -Railway Age, Vol. 67.2, p. 1101; Vol. 69.1, p. 90; Vol. 70.1, p. 222; Vol. 72.2, p. 1205; Vol. 74.2, pp. 1082, 1351; Vol. 81.2, p. 629; Vol. 83.2, p. 706; Vol. 85.1, p. 599.
“ Little attention is ordinarily given to obsolescence or the economy of replacement with more modem equipment solely because of the reduced cost of operation with the newer units. In their failure to appreciate this principle the railways trail far behind many of'the utilities with the result that they are paying the penalty in high operating costs. . . . The engineering and maintenance of way department is cluttered with equipment that it cannot afford to operate.” Railway Engineering and Maintenace, 1926 — Vol. 22, p. 2. To the same effect, see Railway Age, Vol. 81.2, p. 621, p. 1091; Railway Review, Vol. 68, p. 784:
“ Our - railroads were built for the locomotive of the past. They were and are operated in accordance with the locomotive of the past. . . . It remains to do on railroads the things manufacturers have done — to build better locomotives, improve. old ones and to operate them according to the new conditions these improvements themselves have created.” Railway Age, 1922 — Vol. 72.1,-,p. 178. See, also, Transactions, American Society of Mechanical Engineers (1919), p. 999; Railway Review, Vol. 70, p. 43; Engineering News-Record, Vol. 98.1, p. 58; Railway Agé, Vol. 69.2, p. 729; Vol. 76.1, p. 269; Vol. 79.1, pp 256, 505; Vol 81.1, pp. 45; 123, 492; Mechanical Engineering, Vol. 43.1, p. 311; Railway Engineering & Maintenance, Vol. 22, p. 2
In 1920 there were 68,942 locomotives in. use on American Railways. (41st Annual Report of the Interstate Commerce Commission, p. 107.) Of these 12,000 were reported to be obsolete by the Railway Age (Vol. 68.1, p. 33). Of the 2,648 locomotives in. service on the B. & O., on December 31, 1920, 633 were more than twenty years old." On the Southern, 501 locomotives out of a ¿total of 1,865; on the Erie, 474' out of 1,540; on the Seaboard Air Line, 142 out of 581; on the Lackawanna, 57 out of 757; and on the -Pennsylvania, 624 out of a total of 7,599, exceeded that age. In 1926 it was esti
e. g. Locomotives no longer capable of pulling heavy loads, instead of being scrapped or rebuilt, have frequently been continued in use for branch-line or suburban service; or in switch-yards. It is said that their use in such passenger service has been rendered wasteful by the comparative economies of the modern motor rail-car. See Railway Age, Vol. 72.1, p. 315; Vol. 72.2, p. 1372; Vol. 76.2, p. 975; Vol. 82.1, p. 563; Vol. 83.1, p. 601; Vol. 84.1, p. 753; Railway and Locomotive Engineering, Feb., 1928, p. 37. And “just what measure of economy is effected by retaining locomotives in yard and work train service after their condition has become such that they are no longer capable of performing their assigned duties in road service, is not apparent, to say the least.” Railway Review, 1924— Vol. 74, p. 771. The replacement of antiquated power with modem locomotives in its switch-yards by the Seaboard Air Line Ry. is estimated to have effected a savings in operating costs which will pay an annual return of fifty per cent on the investment in the new engines. Railway Age, 1927 — Vol. 83.1, pi 45. See, also, Railway Age, Vol. 79.1, p. 209; Railway Review, Vol. 75, p. 396.
“ There is too much tendency to patch up and perpetuate an obsolete, inadequate and uneconomical unit of equipment rather than to retire it and purchase new equipment to derive the benefit of the advanced state of the art in building.” F. H. Hardin, assistant to the
Samuel Rea, president of the Pennsylvania Railroad, in an address before the eastern division of the U. S. Chamber of Commerce delivered' in 1923, said: “ From an engineering viewpoint there are many improvements which couid be adopted, or the present use of which could be greatly extended, and which would very materially increase the efficiency and reduce the cost of railroad operation. The initial installations, however, would require the investment of very large sums of money, and it is difficult to see how these sums can be raised. ...” Railway Review, Vol. 74, p. 262, 263. To flie same effect, see statement of R. H. Aishton, president, American Railway Association, Railway-Review, 1921 — Vol. 68, pp. 783, 784.
e. g. “ With respect to account No. 3, ‘ Grading,’ it appears that the retirement of "grading is a contingency sufficiently' remote in most cases so that it is not practicable to treat it as depreciable property.” (118 I. C. C. 295, 362.)
“ Upon the completion of the valuation herein provided for the Commission shall thereafter in like manner keep itself informed of all extensions and improvements or other changes in the condition and value of the property of all common carriers, and shall ascertain the value thereof and shall from time to time, revise and cor
Compare Frederick K. Beutel, “ Due Process in Valuation of Public Utilities,” 13 Minnesota Law Review 409, 426-427.
Compare “ Railroad Valuation ” by Leslie Craven; counsel, Western Group, [Railroad] Presidents’ Conference Committee on Federal Valuation of Railroads, 9 Amer. Bar Assn. Journal, .681, 683, 684.
The nature of the order here challenged is described in the report which accompanied it: “At the outset it is to be borne in mind that in no sense can these proceedings properly be treated as lawsuits. . No issue is raised between parties. There is no controversy between disputants, each contending for protection of its. rights. .They are purely administrative proceedings wherein we are following the direction of Congress to create a contingent fund to be used in furtherance of the public interest in railway transportation.” Excess Income of St. Louis and O’Fallon Ry. Co., 124 I. C. C. 1, 7.
The O’Fallon has calculated that the single-sum values found by the Commission for the several recapture periods exceed by $32,660.88 the sums .of the following amounts: (1) the cost of reproduction less depreciation, as of June 30, 1919, of all property exclusive of lands and working capital at 1914 or pre-war prices; (2) the amount by which the actual cost of the property installed between July 1, 1914, and June 30, 1919, exceeded its cost of reproduction at 1914 prices; (3) the present value of the land; (4) the allowance for working capital; (5) the actual investment in additions and betterments, less retirements, subsequent to June 30, 1919. The calculation is correct; but the assertion that the $32,660.88 (which is about 5% of the aggregate of the other amounts) must have been allowed as overhead is without foundation in the record and is inconsistent with statements in the Commission’s report.
“ The method which we therefore find logical and proper for determining the value in the subsequent recapture periods is to add to or subtract from the 1919 value the net increases or decreases in the investment in property devoted to transportation service as determined from the carrier’s returns to valuation order No. 3, with due regard to the element of depreciation.” 124 I. C. C. 3, passim, particularly pp. 37, 42.
As to the evidence the Commission said: “.The use of cost of reproduction is by no means free from practical difficulties. For example, the record here shows that there was a dearth of reliable data from which an accurate estimate of such cost could be made for the period 1920 to 1923. In proof of this assertion reference need only be made to the sources of the data relied upon by the witnesses both for the bureau and for the carriers. Their estimates for those years were founded in large part upon manufacturers’ records and price statistics appearing in various publications, and to a lesser extent upon cost of construction actually incurred by railroads in that period. There was, in fact, very little new railroad construction in those years.
“ Synthetic estimates of cost of reproduction based upon statistics showing price and wage changes do not make allowance for improved methods of assembly and construction. As will hereinafter be more fully indicated, we found in Texas Midland Railroad, supra, [75 I. C. C. 1] at page 140, that the increase in the cost of labor and materials between 1900 and 1914 was largely offset by improvement in the art of construction. How far there may have been a similar offset, so far as costs in the period from 1920-1923 are concerned, is not disclosed of record.” (p. 29.)
And later (p. 41): “. . . even if the cost of reproduction new in 1920 were to be regarded as a controlling element there is not in the present record evidence showing what it might' have cost to reproduce the property of the O’Fallon at that time. The only evidence in this respect is that of the relation of general prices in 1914 and in 1920 and the other recapture years.”
Compare United States v. Boston, Cape Cod & New York Canal Co., 271 Fed. 877, 889, where the Court said that the jury “ should not consider the evidence of reconstruction cost upon the question of value, unless they were satisfied that a reasonably prudent man would purchase or undertake the construction of the property at such a figure,”
“ Costs of railroad buildifig, owing to improvements in methods and economies thereby effected,, did not vary greatly during the period of 20 years preceding 1914, although the prices of labor and ma7 terial fluctuated. There is no testimony here as to how much it cost to build any railroad or any substantial part of one in any recapture periods, and for that reason it is impossible to make a comparison of costs ih the two periods. It is not safe to assume, as the O’Fallon has assumed, that costs of building railroads have varied in recent years in direct ratio to the variation in costs of commodities in general use, of in the costs of materials or labor generally. The fallacy of basing reproduction cost upon price curves or ratios .is clearly indicated by the tabulations introduced by the carrier.” (p. 41.)
The Commission says (,p. 40): “ Weighing the figures previously mentioned in the light of these considerations and the entire record, and viewing the carrier as a common carrier in successful operation and with an established business, we conclude that the value for rate-making purposes of the entire common carrier property of the O’Fallon on June 30, 1919, was 1850,000,”
See Geological Survey: “Coal in 1923,” pp. 528-535; Bureau of Mines: “ Coal in 1924,” p. 460; “ Coal in 1925,” pp. 394-398; “Coal in 1926,” pp. 420-431, 443-461.
Dissenting Opinion
Dissenting opinion of
I agree with what Mr. Justice Brandéis has said and add a word only by way of emphasis of those aspects of the cáse which appear to me sufficient, apart from all other considerations, to sustain the finding of the Commission.
The report of the Interstate Commerce Commission is rejected and its order set aside on the sole ground that in a recapture proceeding under § 15 (a) of the Interstate Commerce Act, it has failed to consider present reproduction cost or value of appellant’s property and so to “'give
The Commission was called upon to value a railroad, with less than nine miles of main line track, which had been constructed prior to 1900. Much of its equipment was purchased before 1908, a considerable part being second hand. Its traffic was very largely dependent on the output of a few coal mines which it served.
In performing its task the Commissibn had before it the cost of reproduction new of appellant’s structural property, estimated on the basis of 1914 unit prices, " with the knowledge , that the costs of reproduction so arrived at were not greatly different from the original costs.” It had evidence of the actual cost of later additions and replacements, of the physical condition of the railroad and equipment, of the character, volume and sources of its traffic, of its working capital and revenues and expenses. It possessed, through its valuation department, special knowledge of the property of this carrier. Through its own experience it had the benefit of an expert knowledge of all the factors affecting, value of railway property growing out of changes in methods of transportation, of improvement in transportation appliances and the consequent obsolescence of existing equipment, of improvement in methods of railroad construction and consequent reductions in cost. Although it had estimates of present construction costs'in the form of index figures based on the comparative general price levels of labor and materials fcr 1914 and each. *,f the recapture years, which it considered and discussed in its report, there was no evidence before it of the actual present cost of construction of this or any other railroad or any affirmative showing that, if appellant’s road was to be built and. equipped anew, competent railroad engineers would deem the present structure and equipment suitable for or adapt
After stating that it had before it the evidence above outlined, including that of reproduction cost, and such other matters as the carrier desired to bring to its attention, the Commission added, “ From this accumulated information we have formed our judgment as to the fair basic single sum values, not by the use of any formula, but after consideration of all relevant facts.” That the Commission gave consideration to present reproduction costs appears not only from its own statement, but from the fact that it gave full effect to increased current market values in determining the value of land and to additions and betterments since June 30, 1914, taken at their cost less depreciation. In the light of those consideratións which affect the present value of appellant’s structural property which Mr. Justice Brandéis has mentioned, I cannot say that the Commission did not have before it the requisite data for forming a trustworthy judgment of the value of appellant’s road or that it failed to give to proof of reproduction cost all the weight to which it was entitled on its merits. Had the Commission not turned aside to point out in its report the economic fallacies of the use of reproduction cost as a standard of value for rate making purposes, which it nevertheless considered and to some extent-applied, T suppose it would not have occurred to anyone to question the validity of its order.
I cannot avoid the conclusion that in substance the objection, now upheld, to the order of the Commission is not that it failed to consider or give appropriate weight to evidence of present reproduction cost of appellant’s road, but that it attached less weight to present construction costs than to other factors before it affecting adversely the present value of the structural property. That this was the real nature of the objection voiced by the dissenting Commissioners seems to me apparent from their opin
Without discussion of the- evidence and other data which received the consideration of the Commission, the opinion of this Court seems to proceed on the broad assumption that the evidence relied on, mere synthetic estimates of costs of reproduction, must so certainly and necessarily outweigh all other considerations affecting values as to require the order of the Commission to be set aside. In effect the Commission is required to give to such index figures an evidential value to which it points out they are not entitled when applied to railroad properties in general or to this' one in particular, arid this, so far as appears, without investigation of the soundness of the reasons of the Commission for rejecting them.
This Court has said that present reproduction costs must be considered in ascertaining value for rate making purposes. But it has not said that such evidence, when fairly considered, may not be outweighed by other considerations affecting value, or that any evidence of present reproduction costs, when compared with all the other factors affecting value, must be given a weight to which it is not entitled in the judgment of the tribunal “informed by experience ” and “ appointed by law ” to deal with the
As I cannot say a priori that increased construction costs may not be more than offset by other elements affecting adversely the present value of appellant’s property, and as there was evidence before the Cdmmissión to support its findings, I can only conclude that the judgment below should be affirmed. In any case, in view of the statement of the Commission that it considered all relevant facts, including the elements of value brought to its attention by the carrier, I should not have supposed that we could rightly set aside the present order without some
Reference
- Full Case Name
- ST. LOUIS & O’FALLON RAILWAY COMPANY Et Al. v. UNITED STATES Et Al.; UNITED STATES Et Al. v. ST. LOUIS & O’FALLON RAILWAY COMPANY Et Al.
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