form, and it has scarcely been possible to go to the dockets themselves to analyze the bases for such decisions. The first case cited by Mr. Fort in his footnote as supporting his claim that the Commission is in the habit of applying "fair share" as a test, is Southwestern Tank Truck Carriers' Comm. v. A. & S. Ry., 284 I.C.C. 75, by Division 3, decided in January, 1952. It is so curious that this decision should be made the lead-off case in the list of cases cited, that we are warranted in taking it as a check upon the accuracy of the citation. The complaint was by an association of operators of motor carrier tanktrucks; the product, petroleum and liquefied petroleum gas, in an area extending from Illinois to New Mexico. The motor carriers assailed the rail rates as below minimum rates, as not making proper contribution to railroad revenues under Sec. 15a, as being inconsistent with the National Transportation Policy, and with the preservation of a national transportation system adequate for the needs of commerce and national defense. From the report of Division 3, January 25, 1952, we find there was in evidence a wealth of statistical material, including cost studies (which later were analyzed and criticized in the report); rate histories for both motor carriers and railroads, rate proposals by both sets of carriers, and traffic flow studies. The advantages and disadvantages of both systems of transportation were developed, and the Division stated its view that the truck service was of greater value to the shipping public than rail service. Thus, the normal elements in a rate case, the cost of the service to the carriers and the value or worth to the shippers, were shown and considered. The record discussed the public need for both rail and motor service, and the inability of motor service to continue, if the competitive points took the rail rates which were on a basis that did not include the latest general 15% increase authorized by the Commission. This latter fact proved to be the crux of the complaint. The Division dismissed the complaint as to rail rates for distances over 300 miles as those rates were not shown to be unreasonable or otherwise unlawful. But for distances 300 miles and under it prescribed a scale of minimum rates, and required the latest general increase to be applied to the prescribed scale when corresponding general increases in the competitive motor carrier rates became effective. A significant statement, which seems to be sound legally and is common sense: "'Where two of several modes of transportation are competing strongly for the same traffic and both are necessary to meet the needs of shippers and of the national defense, rates of both modes must be reasonably compensatory and so related that they will not be unreasonable, unfair, or destructive, but will promote adequate, economical, and efficient service by both modes of transportation and preserve their inherent advantages." (p. 85) The words "fair share" used together, do not appear in the Division's report. The words "if the railroads are to have a fair opportunity to share in the traffic" are used as showing the Commission's conclusion from the record that the rail rates generally must be 1 cent or more lower than the truck rates to give the railroads that opportunity. That statement is unexceptionable, but it is very different from a fair share of the traffic test. If the case had been decided upon the "fair share" test theory (which it was not), the record is clear that the railroad defendants in the case themselves had led the Commission into that trap. The Commission wisely avoided the trap. In the rails' brief, at p. 10 appears the following centered heading for "Part II", which is reproduced below exactly as it is set out in the brief, over the signatures of an impressive list of ten rail counsel: "The rail carriers have sustained (Underscored as appears in the original. Signed by: James G. Blaine, Harry E. Bowe, Wm. E. Davis, Clyde W. Fiddes, James D. Gibson, F. J. Steinbrecher, Robert Thompson, Toll R. Ware, E. G. Nahler, A. J. Baumann) The argument in Part II of the brief on this point concludes (p. 14) with the statement quoted below. It will be noted that the "fair share" is made to apply, in the minds of the counsel for the rail defendants, not merely to traffic lost to the motors, but to any traffic that might be available, without qualification; "The obvious loss in tonnage and in participation of available traffic gives the rail carriers full right to make reasonable efforts to regain traffic so lost as well as their fair share of available traffic." (Emphasis supplied.) It is a canon of legal ethics that statements of principle by counsel in the course of a legal proceeding are tantamount to a certificate that in their opinion the principle advanced is sound and worthy of determination. That canon should be applied here, as to the leading case cited by the general counsel for the Association of American Railroads, who was not of counsel in the case cited. In fact and as a matter of law and good faith, the decision should not have been cited at all. It is not authority for anything, except that it marks a step in a litigated - proceeding not the conclusion thereof. It never became effective. The rail defendants petitioned for reconsideration; the Division reopened the case for reconsideration June 17, 1952 and extended the effective date of the order from time to time. Finally the order was vacated and the complaint was dismissed by Division 3, Dec. 16, 1952, at complainants' request which was received Nov. 28, 1952. The rails had decided to apply the 15% increase, thus automatically setting minimum base rates higher than the Division had ordered. Thereupon the case became moot, and thereafter stood as if it had never been decided, without being a precedent, United States v. Anchor Coal Co., 279 U.S. 312. And on top of all this, it did not apply a "fair share" test. To continue with the cases in Mr. Fort's footnote: - The words "fair share" are found in but two of them, Sugar Atlantic and Gulf Ports to Ohio River Crossings, 296 I.C.C. 121, 132, and Scrap Tobacco from Newark, N.J., to Selma, Ala., 293 I.C.C. 427. The second of them has since been reversed, 297 I.C.C. 424. In the Sugar Case the reference is a passing remark that "The rail lines are at liberty to reduce rates to enable them to obtain a fair share of the traffic, . . ." and then immediately the Commission qualifies that dictum by continuing "so long as such reductions do not violate any provision of existing law." (Citing the Mississippi Valley Barge Line Case, 292 U.S. 282, in which the words "fair share" do not appear at all.) As the Commission did not find the reduced rates just and reasonable, and required their cancellation, this case is no authority for the bald proposition that the Commission has been using "fair share" as a test of the carrier's right to compete. In a number of the Commission's printed reports a reduction in rates is said to be claimed to be justified by the desire of a carrier to "enable it to retain or regain a fair share of the traffic." These decisions are mainly by a division of the Commission, and not by the whole body. Almost without exception they are relatively of small moment, and the great majority cluster in the recent period of three or four years. In none does a positive reasoned statement occur as to the worth of "fair share" as a test of rate reasonableness. In various cases reference to "fair share" appeared in the original decision of the division; but when the case was considered further by the division or reconsidered by the Commission, reference to "fair share" deliberately has been eliminated. We have shown that the term "fair share" is one which is familiar in the railroad world, and among text writers. Later we will see that the term is familiarly employed in acts of Congress, and in the administration of statutes and by executive or administrative officers, but first we shall attempt to discover the sense in which the term has been used by the Commission in the recent opinions above described. It develops that the Commission has used the term in a number of senses. Thus: 1. The words "fair share" appear simply as a recitation of what someone other than the Commission has said on the record. This may be a recitation or refutation of what a carrier claims or of the position taken by it. It may be a recitation of a statement by a shipper as to what reduction is necessary if the carrier is to retain or regain a portion of the shipper's traffic. Examination of the decision shows that the expression has been introduced into the record by the railroads at least twice as many times as by all other forms of transportation agencies combined. It is, as will be shown later, a stock expression used by railroads in justifying rate reductions before the Commission's Board of Suspension. 2. The term "fair share" may be used as the equivalent of the longer, expanded phrase, "a fair opportunity for the carrier to compete for the traffic," all circumstances being considered. 3. Sometimes the words "fair share" are undoubted surplusage, because adequate and unchallengeable grounds for the decision appear of record and have been recited in the report - such as that the burden of proof has not been sustained, or that the reduced rates have not been shown to be compensatory. 4. Cases in which it might appear from the original report on casual reading that the term "fair share" had been used as a test, but on further consideration, the Commission has eliminated the expression in its later or further report, and has bottomed its decisions unmistakably, on other grounds. A considerable number of these cases are cited and classified in the appendix. These are by no means isolated instances of the Commission being led to discuss a "right to a fair share of the traffic" claim because the claim was advanced by the rails. A tedious search of the Commission's printed reports of decisions for more than ten years past indicates that the rails themselves have asserted a claim of right to a "fair share of the traffic" in formal proceedings before the Commission, more than five times as often as the expression has been used by either motor carriers or by water lines. The latter types of competing agencies can well be pardoned if occasionally through the years they assert the same claim that the rails have so persistently advanced which now has become opprobrious - but still is - being used by the rails in their justifications of rate reductions. - 78456 0-56-—pt. 2——7 |