Petroleum in Southern Territory, Rail, 278 I.C.C. 323, 327; also petition of Southern Rail carriers in I. & S. Docket No. 5710 for vacation of suspension order; letter from J. G. Kerr as Agent for respondent rail lines, October 5, 1949; brief filed March 10, 1950, p. 6, 9, 68, insisting on right to establishment of rates to "regain and retain" and "to participate in a fair share" of the traffic, and p. 6, quoting shippers estimate of rate "necessary for the rails if they were to participate in a fair share of this traffic." Order of Commission set aside, Apr. 10, 1952, by Statutory 3-judge court, Atlanta & S. A. Bay Ry. Co., 104 Fed. Supp. 193.

Aleaholic Liquor in the South, I.C.C. 81, 93.

Sulphur from Port Sulphur, to Dubuque, Iowa, 280 I.C.C. 593, 595.

Alcoholic Liquors in Official Territory, 283 I.C.C. 219, 227.

Confectionery within Southern Territory, 284 I.C.C. 105, 109.

Petroleum between Portland and Spokane, P. & S. Points, 286 I.C.C. 516, 517.

Petroleum Products in Southern Territory, 54 M.C.C. 704, 705, 707.

Soda Ash from Baton Rouge and North Baton Rouge, La., 289 1.C.C. 387.

Expert Grain from Buffalo to New York, 292 I.C.C. 647, 650.

Motor Fuel Antiknock Compounds to the East, 292 I.C.C. 631.

Gun Wad Felt from Newark, N.J. to Anska, Minn. 293 I.C.C. 318, 319, reversed, 294 I.C.C. 404 - compare dissent of Commissioner Alldredge, applying test of necessity of proposed rate "to enable respondents (rail carriers) to compete fairly for a share of the traffic." The first reference to "fair share" came from the shipper; on reconsideration, the division merely passed on the accuracy of that statement. The difference between "fair share" and "compete fairly" is obvious and is important.

Deomargarine, Cincinnati and Columbus to the East, 294 L.C.C. 319, 354.

Magazines, Oleo and Rubber, Central to East Points, 294 1.C.C. 363, 364-5.
Paper Wrappers from St. Louis, Mo., to Louisville, Ky., 63 M.C.C. 422, 423.

: b It appears as a recitation made by or said to be made by a shipper as to what reduction is necessary if the carrier is to retain or regam traffic the shipper controls.

See also Gun Wad Felt from Newark, N.J. etc., under 1(a) supra.

Drugs or Medicines from Greensboro, N. C. to Minnesota, 296 L.C.C. 525, 527.

Tplate from Fairfield, Ala., to New Orleans, 294 I.C.C. 397, 399 (see also under "'2")

2.

"Fair Share" used as the equivalent of a fair opportunity for the carrier to compete for the traffic, all circumstances being considered.

Tobacco, North Carolina Points to Southern Points (Rail), 280 I.C.C. 767, 773.

Emory Transp. Co. v. Baltimore & O. R. Co., 292 I.C.C. 346, 348.

Unfinished Piece Goods from and within the South, 292 I.C.C. 772, 776.

Tinplate from Fairfield, Ala. to New Orleans, 294 I.C.C. 397, 403 (see also under 1(b)) ("Fair share" on reconsideration changed to "while not precluding (the carriers) from obtaining a fair and reasonable share of the traffic.)"

Candy and Confectionery in Official Territory, 279 I.C.C. 703, 709.

3.

"Fair Share" Used Casually, or Mere Surplusage.

Canned goods from the Pacific Coast to Group J. 296 I.C.C. 467, 469

4.

Phosphate Rock from Florida to Joliet, Пl. 278 I.C.C. 99, 108,
denying fourth section relief when closer relations to cost of rail-
barge traffic not necessary to enable rail lines "to participate in a
fair share of this traffic" involved: findings and order vacated on
further hearing, and relief granted, 280 I.C.C. 346.

Cases in which it might appear from the record or the original report that the terms might have been used as a test, but on further consideration by a division or by the Commission, the decision was based on other grounds.

Scrap Tobacco from Newark, N. J. to Selma, Ala., 297 I.C.C. 424 reversing 293 I.C.C. 427.

Cigar boxes from Newark, N. J. to Selma, Ala., 296 I.C.C. 69, 70 reversing 293 I.C.C. 613.

Commodities between North and South Pacific Coast, 63 M.C.C. 505, affirming 62 M.C.C. 29.

Appendix II

Excerpt from speech of Commissioner Howard Freas

April 19, 1956 on "Fair Share"

It seems to be believed in many quarters that the Commission regards it as one of its functions to divide traffic on some preconceived basis. Some seem to think that where two major forms of transportation are involved the Commission undertakes to divide the traffic 50-50. Others talk about different proportions but nevertheless suggest the idea that the objective is to influence the flow of traffic according to some concept of "fair share" for each form of transport.

Unfortunately, there are in the reports expressions which give support to these views. In the myriads of reports that are necessitated by the endless litigation before the Commission it seems inevitable that expressions are used that mean one thing to the writer and something quite different to someone else. We try to avoid such situations, but a foolproof way of doing so absolutely and at the same time keeping up with the heavy volume of work does not yet seem to have been found. A number of reports employ the words "fair share" or others of similar import. It may be that these expressions account for much of the misunderstanding. Either this meaning should be made clear or the term should not be used.

Without undertaking to speak for any of my colleagues, I feel certain that no Commissioner undertakes to influence traffic on a preconceived share basis. Such a course would be arbitrary, to say the least. Opinions as to the merits of opposing views may differ, but I challenge any suggestion of intentional arbitrariness.

What then is meant by expressions such as "fair share" in connection with traffic flow? First let me observe that aside from the fact that it seems to bring about confusion there is nothing wrong with the term "fair share". "Share" means a part or a division. "Fair" as here used means equitable, just, affording no undue advantage. To the extent Commission action influences the flow of traffic it should tend to accord to each form of transportation its "fair share."

If this is conceded we come to the question of how a fair share is to be determined. The Commission's function, as I see it, is to accord to the various forms of transport an equality of opportunity. When this is done the fair apportionment of traffic will take care of itself.

Equality of opportunity is created by permitting each carrier involved to establish rates which reflect that carrier's advantages. The carrier which by reason of advantages, inherent or acquired, can perform the service most economically should determine the rate pattern. Within limits, others should be permitted to compete, but those with higher operating costs should not be allowed to break down the rate structure unjustifiably. When the course described is followed the economics of the situation and the desires of the shippers will take care of the division of traffic and wasteful and uneconomic transportation will, at the same time, be avoided.

Mr. ROGERS (presiding). Thank you, sir, for a fine statement.
Are there any questions?

Mr. HARRIS. Mr. Turney, I want to also compliment you for a very thorough job in preparing the statement that you have presented, giving the views of your organization on this highly complicated and controversial problem.

Do I gather from your illustrations here and your testimony, the presentation, that you indicate that the railroads are better off financially by the fact that you have the truckers to give them competition? Mr. TURNEY. I think so.

Mr. HARRIS. In other words, I got the implication if not the direct statement, as illustrated by the chart and explained in your statement that the fact that, with the existence of the truckers, the railroad industry is nearly $200 million better off.

Mr. TURNEY. Than they would be if they cut their rates 20 percent in order to put the trucks out of business, yes.

Mr. HARRIS. That is a pretty interesting analysis. I know the general public will be glad to have that information, too.

I just wondered how big the trucking industry should get and how much of the traffic the trucking industry should assume the burden of taking care of before the railroad industry would not be a lot better off than they are today.

Mr. TURNEY. Mr. Chairman, I want to be perfectly fair about it, bat the only reason that the railroad industry is not highly profitable today is their passenger deficit. That deficit amounts to about 7 or percent of their total freight revenue.

If they did not have that deficit, if the passenger traffic, their express, their passengers and their mail, paid its way, the railroad earngs would be well over 6 percent from their freight traffic.

In some of them, in the Pocohontas carriers, it would be up around 20 percent.

Mr. HARRIS. Do you believe this statement, in your opinion, to be correct policy? The ICC should fix reasonable minimum rates to allow competitive railroad rates to be judged in the light of railroad nditions and the competitive truck rates to be judged in the light. of truck conditions.

Mr. TURNEY. No, sir, I do not.

Mr. HARRIS. You do not think that to be the fact?

Mr. TURNEY. No, sir, for the reasons which I have indicated.

Mr. HARRIS. You say that the Interstate Commerce Commission does not, as has been alleged by representatives of the railroad industry, consider the economic effect of another mode of transportation T. determining what a particular rate should be.

Mr. TURNEY. That is my judgment, and made after a conscientious dy of all the decisions I could find on the subject.

Mr. HARRIS. I have great regard for your knowledge and experience this field. You have certainly indicated here today your familiarity th the subject.

If that is true, how do you account for the decision of the Intertate Commerce Commission in the illustrations presented to us yesterday by Mr. Jervis Langdon, on page 10 of his statement? Let us Just take one of them.

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