UNITED STATES et al. v. NEW YORK CENT R. CO. et al.

This is a bill in equity brought by railroad companies to prevent the enforcement of an order of the Interstate Commerce Commission dated March 6, 1923, following reports of January 26 and March 6, 1923. 77 Interst. Com. Com. Rep. 200, 647. The order purports to be made in pursuance of the Act of August 18, 1922, c. 280; 42 Stat. 827 (Comp. St. Ann. Supp. 1923, § 8595). This Act amended section 22 of the Interstate Commerce Act by adding to what became (1) two paragraphs, viz.: (2) directing the Commission to require the railroads subject to the Act, with such exemptions as the Commission holds justified, to issue interchangeable mileage scrip coupon tickets at just and reasonable rates, in such denominations as the Commission may prescribe, with regulations as to use and prescribing whether the tickets are transferable or not transferable and if the latter what identification may be required, and what bagage privileges go with such tickets; (3) making it a misdemeanor for any carrier to refuse to issue or accept such ticket as required or to conform to the Commission's rules, or for any person wilfully to offer for sale or carriage any such tickets contrary to such rules. After a hearing the Commission ordered the railroads specified, being all the railroads having annual operating revenues in excess of $1,000,000 and known as Class 1, to issue, at designated offices, a non-transferable interchangeable scrip coupon ticket in the denomination of $90, which shall be sold at a reduction of 20 per cent. from the face value of the ticket.

The bill alleges that the amendment of 1922 as construed by the Commission is contrary to the Fifth Amendment and to the Commerce clause, article 1, section 8, of the Constitution, but that properly construed it does not authorize the order made. The order is alleged to apply to intrastate carriage and also to be inconsistent with section 2 of the Interstate Commerce Act (Comp. St. Ann. Supp. 1923, § 8564) which requires like charges for like service in similar circumstances; with section 3 (Comp. St. Ann. Supp. 1923, § 8565) forbidding unreasonable preferences; with section 15a (Comp. St. Ann. Supp. 1923, § 8583a) providing for the establishing of rates for rate groups that will earn a fair return upon the aggregate value of the property used in transportation (see Increased Rates, 1920, cited as Ex parte 74, 58 Interst. Com. Com. Rep. 250; Reduced Rates, 1922, 68 Interst. Com. Com. Rep. 676); and with sections 1 and 22 (Comp. St. Ann. Supp. 1923, §§ 8563, 8595) requiring the Commission to establish just and reasonable fares. These averments are developed in detail, but we do not dwell upon them because the decision below and our own turn upon a different point. It is further alleged in the bill that the conclusion stated by the Commission that the reduced rates established by it for scrip coupon tickets will be just and reasonable for that class of travel is contrary to the specific facts found by the Commission, and is not to be taken as an independent finding of fact, but only as a conclusion or ruling reached by it upon a misinterpretation of the law. This was the view taken by the three judges who sat in the District Court. They held that the Commission considered that the amendment of 1922 either required it to make a reduction or at least showed a spirit and purpose that should be deferred to, and on that ground came to a result that otherwise would not have been reached. They held that therefore the order could not stand, considering that the amendment of 1922 like the rest of the Interstate Commerce Act called for an unbiased opinion upon the merits of the case. They issued a perpetual injunction and the defendants appealed. 288 Fed. 951.

We are of opinion that the interpretation of the statute in the court below was right. There is no doubt that the bill owed its origin to a movement on the part of travelling salesmen and others to obtain interchangeable mileage or scrip coupon books at reduced rates. The bill that was passed originally fixed reduced rates, but it was amended to its present form undoubtedly because the prevailing opinion was that the rates should be determined in the usual way by the usual body. The object of the travelling salesmen was defeated in so far as Congress declined to take any step beyond authorizing the issue of scrip tickets. Coming as it did from the agitation for this form of reduced fares, the statute naturally enough carried with it more or less mirage of fulfilling the hope that gave it rise, but in fact it required a determination of what was just and reasonable exactly as in any other case arising under the Interstate Commerce Act. The original purpose of the amendment as introduced retained headway enough to require the issue of scrip, but there the purpose was stopped, and, as not infrequently happens in legislation, the matter was left otherwise where it was before. Apart from constitutional difficulties, Lake Shore & Michigan Southern Ry. Co. v. Smith, 173 U. S. 684, 19 Sup. Ct. 565, 43 L. Ed. 858, the whole tendency of the law has been adverse to the enactment as proposed at least unless a clear case should be made out.

The Commission in its report pointed out that the net railway operating income for the seven months ending July 31, 1922, was below the return fixed as reasonable, discarded the supposed analogy between the carload rate and the interchangeable scrip or mileage ticket, intimated that the supposed benefit that the carrier might get from the advance use of the money would be more than offset by the increased expenses, and said that the question whether the scrip ticket would stimulate travel sufficiently to meet any loss that might result must remain a matter of speculation until an experiment was made. After thus excluding the grounds upon which the order could be justified the Commission held that the obvious spirit and apparent purpose of the law required that the experiment should be tried, and on these premises declared that the rates resulting from the reduction of 20 per cent. would be 'just and reasonable for this class of travel.' It seems to us plain that the Commission was not prepared to make its order on independent grounds apart from the deference naturally paid to the supposed wishes of Congress. But we think that it erred in reading the wishes that originated the statute as an effective term of the statute that was passed, and therefore that the present order cannot stand.

Decree affirmed.