Mr. Justice Brandeis591 stated the proposition clearly as follows: "Low rates voluntarily established by the carrier may be accepted by the Commission as evidence that other rates, actually or proposed, for comparable service, are unreasonably high.-Board of Trade v. Central of Ga. R. R. Co., 28 Inters. Com. Rep. 154, 164; Sheridan Chamber of Commerce v. Chicago B. & Q. R. Co., 26 Inters. Com. Rep. 638, 647. Compare Louisville & N. R. Co. v. United States, 238 U. S. 1, 11, et seq. 59 L. Ed. 1177, 1180, 35 Sup. Ct. Rep. 696. The voluntarily making of unremuneratively low rates in important traffic may also tend to induce the Commission to resist appeals of carriers for general rate increases on the ground of financial necessities." § 110. Same Subject. The Supreme Court, in the case of Int. Com. Com. v. Chicago G. W. Ry. Co.,592 without referring to the Tift or Yellow Pine case, said: "It must also be remembered that there is no presumption of wrong arising from a change of rate by a carrier. Undoubtedly ** when rates are changed the carrier making the change must, when properly called upon, be able to give a good reason therefor, but the mere fact that a rate has been raised carries with it no presumption that it was not rightfully done." These decisions of the Supreme Court are harmonious. The fact that a "good reason" must be given by the carrier is equivalent to saying, "the advance will be held unjust unless it is 'satisfactorily explained,' that is, unless a 'good reason' therefor is given." Mr. Commissioner Clements593 discusses these cases, and, after quoting from the decision of the Supreme Court in the Great Western case, says, "This is a mere affirmance of what the Act to Regulate Commerce itself recognizes as a right of the carriers, viz., the right to initiate rates. And it must be apparent that were a 'presumption of wrong' 753; So. Ry. Co. v. Tift, 148 Fed. 1021, 206 U. S. 428, 51 L. Ed. 1124, 27 Sup. Ct. 709; Ill. Cent. R. Co. v. Int. Com. Com., 206 U. S. 441, 51 L. Ed. 1128, 27 Sup. Ct. 700. 591 Skinner & Eddy Corp. V. United States, 249 U. S. 557, 63 L. Ed. 772, 39 Sup. Ct. 375. 592 Interstate Com. Com., v. Chi cago G. W. Ry. Co., 209 U. S. 108, 119, 52 L. Ed. 705, 712, 713, 28 Sup. Ct. 493, affirming same styled case, 141 Fed. 1003. 593 Pacific Coast Lumber Mnfrs. Asso. v. N. Pac. Ry. Co., 14 I. C. C. 23, 38. See also Re Class and Commodity Rates from St. Louis to Texas Common Points, 11 I. C. C. 238. to attach to any change in rates which the carriers are authorized to establish, this must result in a denial of the free exercise of the right guaranteed by the Act. But it would be going far to say that the language above quoted is authority for the inference that the Supreme Court does not still recognize the principle that a rate which has been in force for a long period of years and with respect to which commercial conditions have been adjusted, which rate has presumably afforded a reasonable return to the carrier, may not be materially advanced without imposing upon the carriers the burden of justifying the increase." The principle that the long maintenance of rates is evidence that such rates are reasonably high, was applied by the Supreme Court in a case where rates were fixed by the Railroad Commission of the state of Kentucky. Mr. Justice Pitney, delivering the opinion of the court, said:594 "Since it appeared that the company, long prior to March 25, 1910, had voluntarily established the comparatively low rates upon a substantial part of their traffic, had maintained them for many years after the reason assigned for originally introducing them had ceased to exist, and then withdrawn them, not upon the ground that they were inadequate, but because they gave rise to discrimination, and in so doing had introduced rates very much greater, it seems to us that the conduct of the carrier, in the absence of some explanation more conclusive than any that was made, was sufficient basis for a reasonable inference that the special rates in force prior to March 25 upon the distillery supplies were reasonable and adequate compensation for that and other similar traffic, and that the rates thereafter charged were unreasonably high to the extent of being extortionate." § 111. Voluntary Reductions of Rates. Where a carrier voluntarily reduces its rates such fact, under the principle applicable to presumptions, would be evidence that from and after the date of the reduction the resultant rates were reasonably high. Such a presumption, however, should not be in 594 Louisville & N. R. Co. v. Finn, 235 U. S. 601, 59 L. Ed. 379, 35 Sup. Ct. 146, 147; Int. Com. Com. v. Louis ville & N. R. Co., 227 U. S. 88, 99, 57 L. Ed. 431, 436, 33 Sup. Ct. 185. dulged to the extent of holding that the act of the carrier is proof sufficient that the rates in force prior to the reduction were unreasonably high. To hold such a presumption to be conclusive, would make it dangerous for carriers ever voluntarily to reduce rates. On this subject, the Commission has said: "The subsequently-established lower rate is now a just and reasonable rate over the defendant lines; but the Commission is unwilling to subscribe to the theory that the voluntary reduction of a rate by a carrier conclusively shows that the former rate was unreasonable and that reparation should be granted on all shipments moving thereunder within the period of the statute of limitations. ''595 § 112. Effect of Act of June 18, 1910, on Voluntary Rate Reductions. By Act of June 18, 1910,596 it was provided: "Whenever there shall be filed with the Commission any schedule stating a new individual or joint rate, fare or charge, or any new individual or joint classification, or any new individual or joint regulation or practice affecting any rate, fare or charge," the Commission may, as provided in the amendment "enter upon a hearing concerning the propriety of such rate, fare, charge, classification, regulation or practice," and, "after full hearing, the Commission may make such order in reference to such rate, fare, charge, classification, regulation, or practice" as it might make in an ordinary proceeding complaining of an existing rate. It is further provided that, "At any hearing involving a rate increased after January 1, 1910, or of a rate sought to be increased after the passage of this Act, the burden of proof to show that the increased rate or proposed increased rate is just and reasonable shall be upon the common carrier." * * The Transportation Act, 1920, substitutes "lawfulness" for "propriety" in the quotation above from the Act of 1910, and, after the word "rate," bold face above, adds "fare or charge or proposed increased rate, fare or charge." This Act changes the language, but adds nothing to the meaning of the former 595 Ottumwa Bridge Co. v. C., M. & St. P. R. Co., 14 I. C. C. 121, 125; Commercial Coal Co. v. B. & O. R. Co., 15 I. C. C. 11; Menefee Lumber Co. v. T. & P. Ry. Co., 15 I. C. C. 11; Penn Tobacco Co. v. Old Dominion 596 Post, Secs. 494 and 495. Act as enforced by the Commission.597 "Rate, fare or charge" are used, although the clear meaning of the whole section is that when any change is made in any classification, regulation or practice affecting and increasing a rate, the burden of justifying the change is upon the carrier. A change that did not increase the rate would not, as to the burden of proof, be affected by the amendment. This statutory rule as to burden of proof does not lessen the force of the rules of evidence stated in the two preceding sections. The Commission, in speaking of a rate in force for a quarter of a century and which had been materially advanced in the last seven years, held that the reason justifying a further advance "must be even more cogent," and that the history of the rates "was evidence which bears strongly upon the propriety of the increase. ''598 In a still more recent case, the rule was stated, with its proper limitations, as follows: "Undoubtedly a presumption of reasonableness arises from the long existence of a rate; but if this presumption were conclusive, necessary and proper changes in rates would be prohibited. ''599 * 601 The Commerce Court,600 citing the Great Western case," gave that case a somewhat wider meaning than was meant by the opinion therein. In reversing the Commerce Court, the Supreme Court cited the Great Western case, but said: "Under the circumstances, the maintenance of these low rates, after the water competition disappeared, tends to support the theory that by an increase of business or other cause they had become reasonable and compensatory." So, the presumption may or may not arise, and all the facts must be considered. The syllabus of the opinion is as follows: "The value of evi 597 Section 495, post. 598 United States Leather Co. v. Southern Ry. Co., 21 I. C. C. 323, 327. 599 Robinson Land & Lumber Co. v. Mobile & O. R. Co., 26 I. C. C. 427, 429. For illustrative application of the principle see, Ocheltree Grain Co. v. St. Louis & S. F. R. Co., 13 I. C. C. 46; Millar v. New York C. & H. R. R. Co., 19 I. C. C. 78; Audley, Hill & Co. v. Southern Ry. Co., 20 I. C. C. 225; Commercial Club of Omaha v. Southern Pac. Co., 20 I. C. C. 631. 600 Louisville & N. R. Co. v. Interstate Com. Com., 195 Fed. 541, 557, Opinion Commerce Court No. 4, pp. 325, 375, and see same-styled case, 184 Fed. 118, denying a preliminary application for injunction. 601 Int. Com. Com. v. Chicago G. W. Ry. Co., 209 U. S. 108, 119, 52 L. Ed. 705, 712, 713, 28 Sup. Ct. 493. dence in rate proceedings varies, and the weight to be given to it is peculiarly for the body experienced in regard to rates and familiar with the indicias of rate-making." "When rail rates are advanced with the disappearance of water competition, no inference adverse to the railroads can be drawn, but when the old rates had been maintained for several years after such disappearance there is a presumption, if the rates are raised, that the advance is made for other purposes. 602 The bold face does not appear in the syllabus. The railroad situation is radically different since federal control. The 1920 Amendment proposes at least two new and untried experiments the elimination of competition, and a partial guaranty of fair returns; and issues hereafter presented must be "determined at least to a great extent, in the light of present conditions.''603 § 113. Grouping Territory and Giving Each Group Same Rate Legal under Some Circumstances. It has been, and is yet, a practice with carriers to group contiguous territory and give the same rate to all points within a particular group. This practice is sometimes called "blanketing." The Commission, in 1888, speaking of this practice, said:604 "This is a practice which prevails very largely in the making of rates and results in giving to some towns rates which are relatively lower than are charged to others. It is probably a convenient practice to the railroad companies or it would not be so often adopted; and it may sometimes tend to equalize railroad advantages as between towns without wronging any one. The system is not necessarily illegal; it only becomes illegal when it can be shown that illegal results flow from it." 602 Int. Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 57 L. Ed. 421, 33 Sup. Ct. 185. See also Note 581, ante. 603 Green v. A. & V. Ry. Co., 43 1. C. C. 662, 674. 604 LaCrosse Manufacturers' & Jobbers' Union v. Chicago, M. & St. P. R. Co., 1 I. C. C. 629, 631, 2 I. C. R 9, 10. See also Business Men's Asso. of Minnesota v. Chicago, St. P., M. & O. Ry. Co., 2 I. C. C. 12, 52, 2 I. C. R. 41, 46; Lippman & Co. v. Ill. Cent. R. Co., 2 I. C. C. 584, 2 I. C. R. 414; Howell v. New York, L. E. & W. R. Co., 2 I. C. C. 272, I. C. R. 162; Imperial Coal Co. v. Pittsburgh & L. E. R. Co., 2 I. C. C. 618, 2 I. C. R. 436. |