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373

Opinion of the Court.

line-haul rates. It can hardly be heard to say that the present system favors its competitors in the Stock Yards' area.

Swift also failed in its burden of showing prejudicial treatment to it as opposed to its competitors in localities other than Chicago, who do receive delivery on industrial sidings at line-haul rates. These competitors' plants are located for the most part on line-haul carriers' rails, and no complicated switching movements are involved. Swift receives at Chicago, as elsewhere, the same rates and services as other packers similarly situated.

Junction is a subsidiary of the New York Central Railroad Company. The latter had an agreement with the Stock Yards which contained a provision that New York Central would operate Junction for “the benefit, advantage, and behoof of the business and affairs" of the Stock Yards. When this proceeding was begun before the Commission, Junction did not intend to defend it. Attorneys for the Stock Yards wrote a letter to the general counsel of New York Central, calling attention to the failure of Junction to defend and to the covenant in the agreement. They pointed out that Junction possessed the evidence necessary to meet the issue in Swift's complaint, that such evidence should be adduced, and that under the agreement, Junction was obligated to defend in order to avoid irreparable injury to the Stock Yards. Thereafter, Junction defended.

It is Swift's contention that this covenant is illegal. We do not find it necessary to pass upon that matter. As far as Swift is concerned, it does not receive any direct shipments at the Stock Yards; hence any decision as to livestock shipments to Swift would not affect the Stock Yards. If other packers would demand industrial siding delivery in the event Swift's complaint were allowed, unquestionably the effect upon the Stock Yards would be very material.

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It is true that the Commission did give consideration to the probability that if Swift were successful, other packers might demand the same service. The likelihood of such demand seemed to the Commission, as it does to us, obvious. However, if this demand by other packers, reasonably forecast by the Commission, received consideration in reaching the conclusions in this case, it was in the light of the additional burden on the overcrowded condition of the area, the complexity of the operations, and the necessity for extra care in the handling of livestock to move it through the bottleneck at the Ashland Yards. The Commission was not led to such conclusions by giving weight to this covenant. It was wholly unnecessary thereto. The covenant's impact may be consistent with such consideration, but it is not shown to have been controlling in any manner, or relied upon by the Commission.

We have given consideration to other arguments put forth by Swift and find them to be equally without merit; they do not require discussion in this opinion. The judgment of the District Court is

Affirmed.

MR. JUSTICE REED, with whom MR. JUSTICE DOUGLAS joins, dissenting

I am not able to accept the conclusion of the majority that the Interstate Commerce Commission can on this record deny the appellant's prayer for joint through rates between the line-haul defendants and the terminal defendant, the Chicago Junction Railroad. It is admitted here that every manner of freight save livestock is delivered to private industrial sidings in the Chicago switching district under tariffs embracing joint through rates. When the Court concludes that it is not a "discrimination against livestock as a commodity to impose a switching charge in addition to the line-haul rate for delivery of livestock to the same point,” it violates the statutory re

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quirement of equality between commodities. To accord joint through rates for switching to private sidetracks to all commodities save livestock, constitutes such a preference to those commodities over livestock as is proscribed by 49 U. S. C. $ 3 (1). See note 2 of the opinion of the Court.

It is the law under the Interstate Commerce Act, as set out in § 3 (1), that the public interest is best served when common carriers accord equally reasonable treatment to all their patrons. To be sure, the law might be that the public interest is best served by avoiding congestion in order to pass the maximum amounts of traffic through a transportation bottleneck. But Congress has decided, both for the Commission and this Court, that the commonweal shall be served by guaranteeing that there shall not be discrimination between commodities by carriers. The difficulties of congestion, limitations on facilities, or other shipping disadvantages are to be borne equally by all shippers, otherwise the Interstate Commerce Commission could unreasonably prefer commodities through transportation orders, and in effect would be authorized to prescribe the manner in which goods shall be marketed in the public interest. The inadequacy of transportation facilities may not, in my opinion, be cured by penalizing one commodity for the benefit of the others.

When, as here, the carriers while fixing joint through rates for commodities in general fail to furnish them to shippers of livestock, on application the Commission should fix such rate. That rate should be established, 49 U. S. C. $ 15 (3), in the same manner as similar rates for other commodities, of course with proper consideration of the costs of handling the respective commodities. I consider it no answer on this record to say that the switching charge may be no more than the difference in cost of handling dead freight and livestock.

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FRANKFURTER, J., dissenting.

343 U.S.

The shipper is entitled to meet that problem when the Commission comes to determine the switching factor in the joint through rate. Joint through rates should be accorded to livestock shipments on Swift's siding. Then, and not until then, if the rate is attacked as unreasonable, may the Court properly rely on the fact, if supported by a finding of the Interstate Commerce Commission, that the "more complex nature of the switching services required by livestock as compared with dead freight” makes justifiable the difference in the rates. See majority opinion, p. 383. The reasonableness of any commission increase of livestock rates over other commodities should depend upon evidence and findings showing its necessity because of the extra cost of handling without regard to congestion.

I would reverse.

Mr. Justice FRANKFURTER, dissenting.

The conflicting views of my brethren imply serious differences in interpreting the meaning and scope of the report of the Interstate Commerce Commission. Plainly, therefore, that report does not speak with the needed clarity. Therein lies my difficulty with the case. If what the Commission has done is ambiguous, how can I decide whether it was authorized to do what it did? Dubiety in the administrative order precludes intelligible judicial review.

As the Court views the matter, the Commission had before it merely a rate-fixing controversy and more specifically whether relevant transportation considerations justified imposition of a local switching charge of 4.8 cents per 100 pounds* in combination with the line-haul charge as a fair rate for delivery of livestock to private sidings. And

*This rate, in effect when the hearing was held, was based on a minimum of 60,000 pounds.

373

FRANKFURTER, J., dissenting.

the record, according to the Court, amply sustains the finding of the Commission that such a combination did not constitute an unreasonable rate. MR. JUSTICE REED and MR. JUSTICE Douglas interpret the order not to be a rate-fixing order at all, but, in effect, a determination by the Interstate Commerce Commission that livestock, unlike all other commodities, may be excluded from private sidings in the stockyards area, although this is done not in terms but by a designedly preferential rate. The difficulty is, of course, intensified in that the rate is in fact prohibitive.

Where, as here, this Court can draw only conflicting strands of reason from the explanation given by the Interstate Commerce Commission, we have not been spoken to with sufficient clearness. “We must know what a decision means before the duty becomes ours to say whether it is right or wrong." United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499, 511. Therefore, I think the decision below should be reversed with direction to remand the case to the Interstate Commerce Commission for appropriate action.

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