APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS.
Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg
The motion to add the Baltimore and Ohio Railroad Company et al., as parties appellee, is granted. The motions to affirm are granted and the judgment is affirmed.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS concurs, dissenting.
In the Transportation Act of 1940 Congress amended the Interstate Commerce Act to authorize the Interstate Commerce Commission to regulate rates of interstate water carriers as well as of railroads and motor carriers. 54 Stat. 929,
U. S. C. § 901 et seq. At the time the Act was passed there was active opposition in Congress from those who feared that the Commission in exercising the power granted it would be too "railroad-minded." 84 Cong. Rec. 5965; see also id., at 5880-5883. For this reason, as was pointed out in Interstate Commerce Comm'n v. Mechling, 330 U.S. 567, 574-577, and Interstate Commerce Comm'n v. Inland Waterways Corp., 319 U.S. 671, 692 (dissenting opinion), the draftsmen of the legislation specifically wrote into the Act the "National Transportation Policy," 54 Stat. 899, 49 U. S. C. preceding § 1, making explicit the command of Congress that there should be a "fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each." In the Mechling case, decided in 1947, and several times in recent years this Court and District Courts have had to protect inland barge lines from Commission action which would have frustrated the intent of Congress to secure for them the benefit of the inherent advantages of their low-cost mode of carriage. See generally Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 673 (dissenting opinion). Sometimes the Commission has used procedural delaying devices to deny barge lines their inherent advantage over railroads, see Arrow Transportation Co. v. United States, 176 F.Supp. 411 (D.C. N. D. Ala.), aff'd sub nom. State Corporation Comm'n v. Arrow Transportation Co., 361 U.S. 353;*fn1 again, the Commission has taken away the
inherent advantage of barge lines through "the device of a joint rate allowed carriers by rail but denied carriers by water," see Dixie Carriers, Inc., v. United States, 351 U.S. 56, 59. Sometimes, as in the present case, the Commission has resorted to use of inadequate or obscure findings of fact. See, e. g., Interstate Commerce Comm'n v. Mechling, 330 U.S. 567; see also Mechling Barge Lines, Inc., v. United States, 368 U.S. 324, 331 (dissenting opinion).*fn2 And barge lines have been denied the benefit of their inherent advantage when railroad rates challenged and later found to be unlawful have been permitted to take effect because of the long delay of the Commission in passing upon their unlawfulness.*fn3
Therefore it may be significant that the Commission in the present case, at the instance of the large Eastern railroads and without finding basic facts to support its conclusion, disallowed as noncompensatory a proposed joint rate of a small railroad and a barge line which would give shippers of coal from West Virginia and eastern Kentucky to Chicago the advantage of a rate appreciably less than that charged by the Eastern railroads for the same haul. 315 I. C. C. 129. In doing this the Commission denies the small railroad the right to ship coal for a division of $2.04 per ton in a barge-rail rate and leaves it with no alternative, if it wants this business, but to accept a division of $1.66 per ton for a substantially identical haul in combination with one of the large Eastern railroads. The ...