771 RUTLEDGE, J., dissenting. broad purposes of the bill, others being much more sweeping. The new commodities clause, instead of applying only to railroads, would have applied to all types of carriers except air carriers. It is perfectly clear from a reading of the hearings that this proposed application to carriers of all types was what was considered "far too drastic" a change to be included in the Transportation Act of 1940. case should be overruled, not because he approved it, but as he explained because "I am not familiar with the E. J. & E. case." Id. 67-68. Three days later, when the point was again under discussion, Senator Wheeler, at this time apparently refreshed in recollection of the Elgin case, frankly stated that one of the purposes of the revised clause was to meet the Supreme Court decision in it. The witness then expressed the view that the revised clause went considerably beyond the decision because it applied to other types of carriers, and to situations where the shipper owned only ten per cent of the carrier's stock. The witness suggested that, if the intent was merely to reverse the Elgin case, it would be better to leave the clause in its present form, because "I do not believe the decision in the E. J. & E. case is going to prove to be one of the laws of the Medes and the Persians." Id. 385. After more discussion of the effect of the amended version on water carriers and pipe lines, Senator Wheeler remarked: "There are difficulties on that question, in my mind. Suppose we reenacted the law as it is. The question is whether the courts might say, in view of the Supreme Court's decision, 'In reenacting the law, you approved the decision of the Supreme Court.'" Id. 386. The Senator thus was faced with a dilemma. At this point he was apparently persuaded that the extension of the commodities clause to all carriers was a more drastic change than he had originally realized, but hesitated to reenact the old version lest the reenactment be construed as legislative approval of the Elgin case. His fear has now been justified by today's decision. It was not until the following week that he reached the conclusion that the drastic nature of the proposed change outweighed the risk that reenactment would be construed as approval of that case. Id. 427; and see statements quoted in note 12 infra. Such a choice hardly can be construed into "approval" of the decision. 776154 O-48-55 RUTLEDGE, J., dissenting. 333 U.S. The crucial importance of this extension is abundantly shown from the vigorous objections on behalf of parties that would have been affected by extending the commodities clause to water carriers,' to pipe lines, and to motor carriers." It was argued repeatedly that it was proper for shippers to control interests in these carriers for reasons not applicable to carriers by rail. These arguments cannot be read without concluding that the change, whether desirable or not, would have been drastic indeed and would have gone far beyond the intended coverage of the Transportation Act of 1940.10 Rather than jeopardize the entire legislative program comprehended by the Act," the committee naturally decided that sound strategy required separate consideration of this narrower, but still broad and highly controversial problem. 1Id. 236, 284-286, 308-310, 385-387, 427-432, 492, 623, 632-633, 692, 753-754, 926-928. 8 Id. 386, 589-597, 606-610, 611-612, 654-660, 736-742. 9 Id. 127, 432-433. 10 For example, the petroleum industry strenuously opposed the provision because it would have effected the divorcement of pipeline companies from producers. See note 8 supra; cf. id. at 935. Opposition by farm lobbies was directed particularly at the new commodities clause: "Section 12 appears to endanger the activities of more than 100,000 farmers of our area who have cooperatively associated themselves together and who, because of exorbitant rail rates, are transporting increasing tonnage of grain, livestock, and petroleum products both through cooperative trucking associations and by trucks owned by local or regional cooperatives." Id. 432433. See also id. 311. The most vigorous opposition, however, came from parties who would be adversely affected by the applicability of the clause to water carriers. See note 7 supra. They pointed out, as an instance of the far-reaching effect of the amendment, that 65 per cent of the privately owned American merchant marine would be affected by the change. 11 See Hearings 772; cf. note 10 supra. 771 RUTLEDGE, J., dissenting. Statements of the committee chairman show that this was the real basis for the conclusion that the amendment would have been "far too drastic." 12 Indeed they show, together with other statements before the committee, that the Elgin decision was regarded as unfortunate and likely to be overruled when another case should arise.13 Even the opposition by the short-line railroads was based not on the argument that an overruling of the Elgin case would have been too drastic, but rather on the fact that the amended § 12, in conjunction with other proposed legislation, would have prohibited the transportation of commodities for anyone who owned, even as an investment, as much as ten per cent of the stock of the railroad. And other groups argued that the amendment was too drastic because it was not limited to common carriers.15 In sum, the proposed amendment was indeed 14 12 Senator Wheeler explained the basis for the decision to abandon the proposed amendment more than once. To shorten testimony by witnesses interested in the effect of the clause on pipe lines and water carriers he stated: "You might as well quit wasting your time, because I made an announcement yesterday with reference to that, and I hope you people will not come here with the idea of taking up a lot of time on that. I have said that pipe lines are a subject that ought to be given independent consideration, and we cannot take it up and give it the necessary time and study in this bill. That may be modified or eliminated, so far as pipe lines and water carriers are concerned." Id. 590. Later he said: "I have felt, frankly, that in this particular legislation, which does divorce, ships from industry, that it was such a broad subject, and one which required so much independent study, that it ought to be handled by separate legislation. No one in the Government service seems to have made a study of the question. I felt that it ought to be eliminated from the provisions of this bill at this time, and be introduced as separate, independent legislation, as has been done in the past." Id. 772. 13 See note 6. 14 Hearings 541; and see id. 285, 385–386. 15 Id. 421, 435, 841. RUTLEDGE, J., dissenting. 333 U.S. drastic, but not because it would have accomplished what the committee members assumed this Court would and should do without legislative aid.18 It is therefore most unreasonable to conclude that the considerations which prompted the Senate Committee to reject a proposed extension of the commodities clause to all types of carrier compel this Court to deny a request to overrule an interpretation of the impact of the clause on railroads which the most active sponsors regarded as erroneous. The host of reasons which may have induced the various members of the committee to forego the extremely controversial and drastic extensions forbids any inference that the committee action was the equivalent of approval of the Elgin case by the entire Congress. In fact, the difficulty of interpreting the views of even one legislator without taking account of all he has had to say, as exemplified by the discussion in note 6, should serve as a warning that the will of Congress seldom is to be determined from its wholly negative actions subsequent to the enactment of the statute construed. In this case the rejection of the proposed amendment is not more, indeed I think it is less, indicative of congressional acquiescence than complete inactivity would have been. Even if there may be cases where the "silence of Congress" may have some weight, that ambiguous doctrine does not require or support the result which the Court reaches today. Girouard v. United States, 328 U. S. 61; cf. Cleveland v. United States, 329 U. S. 14, concurring opinion at 21. Nor is that result justified by the "equitable" considerations which the Court's opinion somewhat obliquely advances. It is suggested that a refusal to follow the Elgin precedent would be to apply a different and more drastic rule to Bethlehem than applies to its competitor, 16 See note 6. 771 RUTLEDGE, J., dissenting. the United States Steel Corporation. But, aside from the specious character of an argument that permits X to violate the law on the ground that Y also violates it, there is no explanation offered for the assumption that the overruling of the Elgin case would have no effect. on United States Steel. The policy of res judicata would not apply, cf. Commissioner v. Sunnen, 333 U. S. 591, and United States Steel, instead of being prejudiced by the course of decision, actually has been benefited by more than a decade of ownership of the Elgin road, contrary to the statute's plain terms and policy. The Court also feels that the relief requested is too drastic because Bethlehem would be compelled to sell its short-line railroads, the Government has not shown that independent ownership of these railroads is likely, nor has it shown that evils exist which would be remedied by this relief. These are considerations which undoubtedly influenced the majority in the Elgin case, somewhat differently it would seem from the majority in this one, but which the dissenting justices felt had been foreclosed by the legislative determination of policy. Reliance on such arguments today seems inconsistent with the statement "that if the Elgin case were before us as a case of first impression, its doctrine might not now be approved." Moreover, it does not follow that this Court in the exercise of its equity jurisdiction could not adapt the relief afforded so as to give time and opportunity for making the adjustments necessary to secure conformity with the statute in an orderly and inoppressive manner. Indeed it would be the Court's duty to do this. The arguments on this level are most effectively answered by the dissenting opinion of Mr. Justice Stone, who was joined by Mr. Justice Brandeis and Mr. Justice Cardozo, in the Elgin case: "The language of the commodities clause, read in the light of its legislative history, |