District of Columbia v. Colts, 282 U.S. 63 (1930)
Case details
Citation
282 U.S. 63
Full caption
DISTRICT OF COLUMBIA v. COLTS.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Nov. 24, 1930
Majority
Butler (Justice)
DISTRICT OF COLUMBIA v. COLTS.
CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
No. 96. Argued October 23, 1930.—Decided November 24, 1930.
1. Article III, § 2, cl. 3, of the Constitution, which provides that “The trial of all crimes, except in cases of impeachment, shall be by jury,” must be interpreted in the light of the common law, according to which petty offenses might be proceeded against summarily before a magistrate sitting without a jury. P. 72.
2. It is settled that there may be many offenses called “petty offenses ” which do not rise to the degree of “ crimes ” within the meaning of Article III, and in respect of which Congress may dispense with a jury trial. Id.
3. Whether a given offense is to be classed as a crime, so as to require a jury trial, or as a petty offense, triable summarily without a jury, depends primarily upon the nature of the offense. P. 73.
4. Driving at a forbidden rate of speed and so recklessly “ as to endanger property and individuals,” in violation of the District of p. 64respondent a jury trial upon an information against him charging reckless driving.
Mr. Robert E. Lynch, with whom Messrs. Wm. W. Bride and Robert P. Reeder were on the brief, for petitioner.
The respondent had no right to trial by jury in this case unless the Constitution gave him that right.
Congress may require the trial of petty offenses without a jury. Callan v. Wilson, 127 U. S. 540; Schick v. United States, 195 U. S. 65.
In Callan v. Wilson, the defendant was sentenced to pay a fine of twenty-five dollars or undergo imprisonment for thirty days; but that was not the maximum which might have been imposed. “ It is what sentence can be imposed under the law, not what was imposed, that is the material consideration.” United States v. Moreland, 258 U. S. 433. While no statute dealt with conspiracy directly, Rev. Stats., Dist. Col., § 92, provided that laws which were in force in Maryland on February 27, 1801, should continue in force within the District of Columbia, and conspiracy was a common-law misdemeanor in Maryland, State v. Buchanan, 5 H. & J. 317, (see Bishop, Criminal Law, 9th ed., I, 452; Russell, Crimes, 7th ed., I, p. 10,) and, therefore, in the District of Columbia. One who was convicted of that offense could not have been sentenced to the penitentiary, Rev. Stats., Dist. Col., § 1144, but he could have been sentenced to jail, Rev. Stats., Dist. Col., §§ 1049, 1054; and imprisonment for a common-law misdemeanor was at the discretion of the court and was not limited to one year. See United States v. Marshall, 17 D. C. 34; Palmer v. Lenovitz, 35 App. D. C. 303. The offense was being punished as a common-law offense, for which very serious punishment might have been imposed. The case was, therefore, unlike the present one, for here the offense, which was forbidden by statute, p. 65cannot be punished by a larger fine than one hundred dollars or by a longer imprisonment than thirty days. The essential point of similarity, as found by the court below, is simply the fact that reckless driving was also an offense at common law.
It is true that in Callan v. Wilson the Court referred to the common law as determining whether an offense was of the class or grade which was triable by a jury at common law. It substantially said that the clauses of the Constitution which provide for trial by jury are to be read in the light of the rule of the common law, which requires trial by jury in criminal cases but exempts petty offenses from this requirement. But the Court did not take the position that all offenses must remain for all time as they were at common law. It did not deny that Congress may provide serious punishment for acts which were regarded as innocent a hundred and forty years ago, and punish lightly, or not at all, acts which were regarded as serious crimes by our ancestors. Certainly, if offenses which were once petty are to be punished severely, a trial by jury must be allowed; and it must be equally true that, if Congress decides that an offense shall be given a petty punishment, persons who are accused of such acts may be tried as for petty offenses. As said in People v. Craig, 195 N. Y. 190; “ It is not the mere name of a crime but the punishment therefor that characterizes it.” The decision in Callan v. Wilson does not deny the power of Congress to erect its own standards as to the seriousness of offenses at the present day, to limit the punishment accordingly, and to order the trial of an offense which it treats as petty by summary procedure.
In Schick v. United States, 195 U. S. 65, the only punishment provided for the offense was a fine of fifty dollars. The Court said that the offense was a petty one for which Congress might have required trial by the judge alone. p. 66Its statements that the Constitution does not require jury trial of petty offenses, and that the nature of the offense and the amount of the punishment determine whether the offense is serious or petty, mark the extent of the holding, for it cannot be supposed that the Court intended to class all misdemeanors as petty offenses.
The Court has thus conceded that the Constitution does not require trial by jury in the case of petty offenses, but it has not shown precisely what offenses are to be classed as “ petty.”
Before the Constitution was adopted there were many offenses, both in England and America, in the trial for which no jury was allowed. These included, not only offenses which might be punished by fines, but many others in which corporal punishment or imprisonment might be imposed. Blackstone, Commentaries, IV, 280; Paley, Summary Convictions, Introduction; Webb, English Local Government: Parish and County, 419; Jenks, Short History of English Law, Eng. ed., 153, 154; Frankfurter and Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv. L. Rev. 925, 929.
In the American Colonies and States there were many instances of laws for the trial of criminal offenses which did not provide for the participation of juries except, if at all, on appeal.
Article III and the Sixth Amendment established the right to trial by jury in criminal prosecutions; but there is nothing in the terms used, or in the circumstances or discussions attending their adoption, which shows a requirement of trial by jury more comprehensive than was observed throughout the States at the time.
Decisions of many state courts support the position that an offense such as is here involved, for which the maximum punishment is a fine of one hundred dollars or imprisonment of thirty days, may be tried by summary p. 67procedure. State v. Parker, 87 Fla. 181; Bray v. State, 140 Ala. 172; State v. Broms, 139 Minn. 402; State v. Anderson, 165 Minn. 150; Byers v. Commonwealth, 42 Pa. St. 89; People v. Harding, 189 N. Y. Supp. 657; Duffy v. The People, 6 Hill’s Rep. 75; Bell v. Nebraska, 104 Neb. 203; Latimer v. Wilson, 103 N. J. L. 159; McGear v. Woodruff, 22 N. J. L. 213; State v. Glenn, 54 Md. 572.
The offense of reckless driving in the District of Columbia, as defined in the Traffic Act, is a municipal offense, notwithstanding the fact that the law was enacted by the Congress of the United States. It was not created in a criminal statute but by the Traffic Act of 1925, which deals simply with local traffic conditions. The offense is a common’ one. In a city of scarcely more than five hundred thousand inhabitants there are almost seventeen hundred charges of reckless driving tried before the one court in a single year. (Report of the Commissioners of the District of Columbia for the year ended June 30, 1929, p. 14.) And, as shown by the state cases herein cited, the maximum punishment for a violation of this portion of the Act is relatively light. In view of these circumstances, a charge of reckless driving may properly be tried without a jury.
The Traffic Act deals exclusively with the District of Columbia and is a statute in the nature of a municipal regulation. Congress was dealing solely with local conditions. It said that the operation of an automobile in a certain manner constituted reckless driving. There is nothing in the reports or debates prior to the enactment of the statute to indicate that Congress was attempting to revamp the common law offense of “ fast ” driving in. a “ crowded or populous street.” Because the offense of reckless driving today may have one, or even more, elements similar to a common law offense, that fact does not make it a common law offense.
Assuming, without conceding, that, at the time of the adoption of the Constitution, the charge of reckless driving was triable only by jury, it is submitted that, in recent times, the offense has been merely a petty one. The determination of what punishments shall be considered infamous is affected by changes in public opinion from one age to another. Ex parte Wilson, 114 U. S. 417; Mackin n . United States, 117 U. S. 348; United States n . Moreland, 258 U. S. 433. It is dear from the foregoing decisions of this Court that a breach of the peace consisting of fast driving so as to endanger the lives and safety of the citizens was not an indictable offense at common law. Distinguishing United States v. Hart, 1 Pet. C. C. 390.
At the present day, all men and women travel much more rapidly than was possible in 1787. Doubtless there has been an accompanying change in the attitude of the public towards reckless driving and in the effect of conviction upon an offender’s standing in the community. This change in public opinion may be an important consideration in determining whether the offense should now be regarded as a petty one. The fact that there are seventeen hundred arrests for reckless driving in the District of Columbia in a single year, shows not only the need for as expeditious a trial as is compatible with law and with justice, but that the offense is not being regarded as a major one at the present time.
The Court of Appeals seized the phrase “ indictable offense at common law ” as used in United States v. Hart, 1 Pet. C. C. 390, and concluded the offense of reckless driving defined in the Traffic Act was an “ indictable offense ” and therefore a “ crime ” as that term is understood in Article III, § 2, cl. 3, of the Constitution. But the offense of fast driving over a crowded and populous street at such a rate or in such manner as to endanger the safety of the inhabitants, is quite different from the p. 69offense prohibited by the Traffic Act and known as reckless driving. The first can only be committed where the vehicle attains a speed which is designated fast and over a crowded or populous street. The offense of reckless driving may be committed although the operator of the vehicle is not proceeding fast, and it may be committed upon a street that is not crowded or populous, and irrespective of whether the operation of the vehicle amounts to a breach of the peace or not.
Mr. William B. O’Connell, with whom Messrs. Harry T. Whelan and Louis L. Whitestone were on the brief, for respondent.
If the offense is a criminal offense, there can be no question but that the defendant is entitled to a trial by jury. The language of the Constitution and of the Sixth Amendment is not susceptible of any other interpretation.
The offense is not so petty that it should be tried by a summary proceeding. The driving of an automobile in the manner set out in the information would have amounted to a common nuisance at common,law, and would therefore have been an indictable offense, and one entitling a defendant to a trial by jury. Blackstone’s Commentaries, Book IV, p. 166. See also United States v. Hart, 1 Pet. C. C. 390.
Has Congress the power to fix arbitrary limits of punishment as the test for determining the right of a defendant to a trial by jury in a criminal case? If Congress can draw a line at which jury trials begin and end, there are innumerable federal statutes punishing a great many misdemeanors, especially the National Prohibition Act, that Congress could very summarily enforce.
The nature of the offense is not the only criterion of the right to a trial by jury; there is also the punishment which may be prescribed. If this is a “petty offense,” it would seem that the framers of the Constitution placed p. 70a greater value on $20.00 than they did upon ninety days of personal liberty.
That the offense may be tried by a summary proceeding in some States is not denied; and that this was true in most of the colonies before the adoption of the Constitution, is not denied. But the limitations upon States are not those upon the federal government. It is the very purpose of the Constitution to prevent the federal government from taking undue liberties with the citizens of the States. Decisions of state courts have no bearing whatever on this case. Barron v. Baltimore, 7 Pet. 243.
If Blackstone’s definition is the true test, (Blackstone’s Commentaries, Book IV, p. 5), the offense charged here is certainly a crime, and it comes, therefore, within the scope of offenses referred to in the Constitution. That there are many or few of these offenses, is of no importance. No one would seriously urge that a defendant be denied a jury trial solely for the purpose of making prosecution convenient to the Government.
Mr . Justice Sutherla nd delivered the opinion of the Court.
An information filed in the Police Court of the District of Columbia charged the respondent, Colts, with having operated upon various streets, contrary to the statute set forth below, “ a certain motor vehicle at a greater rate of speed than twenty-two miles an hour over said public highway[s] recklessly, that is to say at a greater rate of speed than was reasonable and proper, having regard to the width of said public highway [s], the use thereof, and the traffic thereon, in such manner and condition so as to endanger property and individuals.” Respondent was arraigned, pleaded not guilty, and demanded a trial by jury. The demand was denied, and he was put upon trial before the judge without a jury and found guilty. Upon writ p. 71of error the Court of Appeals of the District of Columbia reversed the judgment, holding that respondent, under the federal Constitution, was entitled to a jury trial. With that conclusion we agree.
The acts of Congress passed for the government of the District provide that prosecutions in the police court shall be on information; that where the accused would be entitled to a jury trial under the Constitution, trial shall be by jury unless waived; and that in cases where the accused would not by force of the Constitution be entitled to a trial by jury, trial shall be by the court without a jury, unless, in cases where the fine or penalty may be more than $300 or imprisonment more than ninety days, the accused shall demand a trial by jury, in which case the trial shall be by jury. D. C. Code (1930), Title 18, c. 4, § 165.
Section 9 of the District of Columbia Traffic Act, 1925, as amended, D. C. Code (1930), Title 6, c. 9, § 246, provides:
“(a) No vehicle shall be operated upon any public highway in the District at a speed greater than twenty-two miles per hour except in such outlying districts and upon such highways as the director may designate. . . .
“(b) No individual shall operate a motor vehicle over any public highway in the District (1) recklessly; or (2) at a rate of speed greater than is reasonable and proper, having regard to the width of the public highway, the use thereof, and the traffic thereon; or (3) so as to endanger any property or individual; or (4) so as unnecessarily or unreasonably to damage the public highway.
“(c) Any individual violating any provision of this section where the offense constitutes reckless driving shall, upon conviction for the first offense, be fined not less than $25 nor more than $100 or imprisoned not less than 10 days nor more than 30 days; and upon conviction for p. 72the second or any subsequent offense such individual shall be fined not less than $100 nor more than $1,000, and shall be imprisoned not less than 30 days nor more than one year, and the clerk of the court shall certify forthwith such conviction to the director, who shall thereupon revoke the operator’s permit of such individual.
“(d) Any individual violating any provision of this section except where the offense constitutes reckless driving, shall, upon conviction for the first offense, be fined not less than $5 nor more than $25; upon conviction for the second offense, such individual shall be fined not less than $25 nor more than $100; upon conviction for the third offense or any subsequent offense such individual shall be fined not less than $100 nor more than $500, and shall be imprisoned not less than 30 days nor more than one year, and the clerk of the court shall certify forthwith such conviction to the director, who shall thereupon revoke the operator’s permit of such individual.”
It will be seen that the respondent is not charged merely with the comparatively slight offense of exceeding the twenty-two mile limit of speed, subdivision (a), or merely with driving recklessly, subdivision (b) (1); but with the grave offense of having driven at the forbidden rate of speed and recklessly, “so as to endanger property and individuals.”
By § 165 of the D. C. Code, outlined above, the Constitution is made the test—as, of course, it must be—to determine whether the accused be entitled to a jury trial. Article III, § 2, cl. 3, of the Constitution provides that “ The trial of all crimes, except in cases of impeachment, shall be by jury.” This provision is to be interpreted in the light of the common law, according to which petty offenses might be proceeded against summarily before a magistrate sitting without a jury. See Callan v. Wilson, 127 U. S. 540, 557. That there may be many offenses called “ petty offenses ” which do not rise to the p. 73degree of crimes within the meaning of Article III, and in respect of which Congress may dispense with a jury trial, is settled. Schick v. United States, 195 U. S. 65. And see Natal v. Louisiana, 139 U. S. 621, 624; Lawton v. Steele, 152 U. S. 133, 141; State v. Rodgers, 91 N. J. L. 212, 214.
Whether a given offense is to be classed as a crime, so as to require a jury trial, or as a petty offense, triable summarily without a jury, depends primarily upon the nature of the offense. The offense here charged is not merely malum prohibitum, but in its very nature is malum in se. It was an indictable offense at common law, United States v. John Hart, 1 Pet. C. C. 390, 392, when horses, instead of gasoline, constituted the motive power. The New Jersey Court of Errors and Appeals, in State v. Rodgers, supra, has discussed the distinction between traffic offenses of a petty character, subject to summary proceedings without indictment and trial by jury, and those of a serious character, amounting to public nuisance indictable at common law; and its examination of the subject makes clear that the offense now under review is of the latter character.
An automobile is, potentially, a dangerous instrumentality, as the appalling number of fatalities brought about every day by its operation bear distressing witness. To drive such an instrumentality through the public streets of a city so recklessly “ as to endanger property and individuals ” is an act of such obvious depravity that to characterize it as a petty offense would be to shock the general moral sense. If the act of the respondent described in the information had culminated in the death of a human being, respondent would have been subject to indictment for some degree of felonious homicide. Nash v. United States, 229 U. S. 373, 377; 1 Whar. Cr. Law, §§ 343 et seq., 353-356; 1 Bish. New Cr. Law, § 313 et seq.; Story v. United States, 16 F. (2d) 342, 344; State v.
Syllabus. 282 U.S.
Campbell, 82 Conn. 671, 677; Mercer v. Corbin, 117 Ind. 450; Belk et al. v. People, 125 Ill. 584, 589-590; Kennedy v. Way, Bright. (Pa.) 186,188. Such an act properly cannot be described otherwise than as a grave offense—a crime within the meaning of the third Article of the Constitution—and as such within the constitutional guarantee of trial by jury.
Judgment affirmed.
BEAUMONT, SOUR LAKE & WESTERN RAILWAY COMPANY et al . v. UNITED STATES et al .
UNITED STATES et al . v . BEAUMONT, SOUR LAKE & WESTERN RAILWAY COMPANY et al .
APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI.
Nos. 44 and 45. Argued October 20, 1930.—Decided November 24, 1930.
1
In fixing divisions of joint rates under § 15 (6) of the Interstate Commerce Act, the facts specified in that section, and others necessarily or properly to be taken into account, are to be considered having regard to the duty of the Commission under § 15 a (2) to establish and adjust rates so that the carriers as a whole, in each rate group or territory that the Commission may designate, will, under management and expenditures such as are there specified, earn as nearly as may be a fair return upon the aggregate value of their operating property. P. 82.
2
Section 15 (6) requires the Commission to consider the condition of each carrier and to determine whether the division of each joint rate is unreasonable, or otherwise repugnant to the specified standards, and what division will for the future be just, reasonable and equitable; the Commission may not change an existing division unless it finds that division unjust or unreasonable. Id.
3
But the Commission need not under all circumstances take specific evidence as to each rate of every carrier. When considering divisions of numerous joint rates applicable to traffic passing through gateways between different territories, the Commission 22110°—31------- 6
may make the required determinations and establish the bases for divisions between groups of carriers in the respective territories upon evidence which it reasonably may deem typical and to have sufficient probative weight to justify the necessary findings and the order in respect of each rate. That is to say, such typical evidence may sufficiently disclose the facts necessary to enable the Commission duly to consider the divisions of each joint rate to be received by every carrier. P. 82.
4. Where the evidence before the Commission is sufficient to disclose, as to each carrier, all the facts specified in § 15 (6) and to furnish an adequate and reasonable basis for the proper division of each of the joint rates applicable to the traffic involved, the mere fact that carriers and divisions were dealt with on an average or group basis does not indicate that the Commission did not properly consider each carrier and rate, or that it did not duly take into account the facts specified in § 15 (6), or that it failed to obey the statute in any respect. P. 83.
5. General statements in the reports of the Commission to the effect that, in reaching its conclusions, it considered all the pertinent evidence, add nothing to the prima facie presumption that generally attends its determinations. P. 86.
6. In support of an order dividing joint rates as between two territorial groups of carriers on the basis of the general mean of the conditions of the several carriers constituting each group, the reports of the Commission showed that its findings as to average group conditions taken as a whole were sustained by the evidence, but there was other evidence before it showing, as between individual carriers in each group, so wide a range of rates of return that, if approximate similarity in that respect was essential to the order, its basis could not be sustained. Held:
(1) The failure of the Commission specifically to report the facts and give the reasons upon which it justified the use of the average or group basis is condemned. Complete statements by the Commission showing the grounds upon which it rests its determinations in cases like this are quite as necessary as opinions of lower courts setting forth the reasons for their decisions in analogous cases; and this Court has recently emphasized their duty fully to state the ground on which they act. P. 86.
(2) Failure in this was not excused by the fact that the carriers presented evidence on a group basis or by omission of carriers, in their petition for rehearing, to object to the use of averages. P. 87.
Counsel for Parties. 282 U.S.
(3) A sound basis for a rule or formula prescribing the divisions is essential to compliance with the Act, and carriers suing to set the order aside upon the ground that the divisions are unreasonable are not estopped from assailing the averages or groups adopted. P. 87.
7. The evidence in this case leads to the opinion that, notwithstanding the wide differences in rates of return between carriers, the basis adopted will not, on that account, result in unjust and unreasonable divisions. Id.
8. In a suit to set aside an order of the Commission fixing divisions of joint rates, a contention that the prescribed divisions are confiscatory, in violation of the Fifth Amendment, has no foundation in the record if there is no allegation in the complaint, or evidence to show, that any division to any of the complaining carriers will not yield a sum equal to the operating expenses chargeable to the service covered by it plus a reasonable return on the property value fairly attributable to that service. P. 88.
9. Joint rates between eastern and southwestern points were subject to an established primary division at points on the Mississippi River. In a proceeding under § 15 (6), the Commission sought to make just subdivisions of revenues on transportation west of the river, assuming the validity of the joint rates and the primary divisions. Held that carriers which were parties to the joint rates but which participated only in the transportation and revenues east of the river, need not be made parties to the proceeding. P. 89. 10. The District Court, upon dismissing a bill by carriers to annul an order of the Interstate Commerce Commission fixing divisions of joint rates, has authority in its discretion to stay the enforcement of the prescribed divisions pending appeal; and discretion was not abused in this case. Pp. 90-92.
36 F. (2d) 780, affirmed.
Appe als from a decree of a District Court of three judges dismissing the bill in a suit brought by carriers to set aside an order of the Interstate Commerce Commission prescribing divisions of joint rates; and from an order staying enforcement of the divisions until determination here.
Messrs. F. H. Moore and Samuel W. Moore, with whom Messrs. W. E. Davis, E. T. Miller, M. G. Roberts, J. R-
Bell, G. H. Muckley, H. H. Larimore, C. S. Burg, J. R. Turney, and Robert Thompson were on the brief, for the Southwestern Lines.
Mr. E. M. Reidy, with whom Solicitor General Thacher, Assistant to the Attorney General O’Brian, Messrs. Charles H. Weston, Special Assistant to the Attorney General, and Daniel W. Knowlton were on the brief, for the United States and the Interstate Commerce Commission.
Mr. Frank H. Towner, with whom Messrs. Silas H. Strawn, P. F. Gault, K. F. Burgess, Ralph M. Shaw, J. Carter Fort, G. M. Swanstrom, A. H. Lossow, K. L. Richmond, and L. H. Strasser were on the brief, for the Western Trunk Carriers.
Mr . Justice Butler delivered the opinion of the Court.
This is a suit brought in the District Court for the Western District of Missouri by appellants, carriers in southwestern territory, against the United States to annul and set aside an order of the Interstate Commerce Commission prescribing divisions of joint rates applicable to certain freight traffic between points in that territory and points in western trunk line territory or via western lines to and from points in eastern territory. The Commission and certain western trunk line carriers intervened. The case was tried before a court of three judges. 28 U. S. C., § 47. It sustained the order and dismissed the petition. 36 F. (2d) 789. The southwestern lines appealed. 28 U. S. C., § 345 (4). The court stayed the enforcement of the prescribed divisions until determination here. The United States and Interstate Commerce Commission appealed from that order.
The Commission’s order complained of was made in proceedings, instituted October 8, 1923, by the Commission p. 78on its own motion. Its report defines western trunk line territory to include Iowa, Minnesota, Wisconsin, the Upper Peninsula of Michigan, Illinois, North Dakota, South Dakota, and that part of Missouri on and north of the main line of the Missouri Pacific between Kansas City and St. Louis; it defines the southwestern territory to include Texas, Arkansas, Oklahoma, that part of Louisiana west of the Mississippi river, and so much of Missouri as is south of the above mentioned line of the Missouri Pacific.
Twelve western trunk lines and thirty-two southwestern lines were parties to this investigation. The former, carriers in that territory having little or no mileage in the southwest, demanded increases and were by the Commission called complainants; the latter, carriers in the southwest having little or no mileage in the other territory, merely sought to retain the existing divisions and were called defendants. The Santa Fe and Rock Island, named as defendants, have important lines in both territories. The former regarded itself as a southwestern carrier; the latter remained neutral. The investigation was as to the reasonableness of divisions of joint rates on freight traffic between points on lines of respondents in southwestern territory and points on lines of respondents in western trunk line territory moving through Kansas City or St. Louis in Missouri, East St. Louis, Cairo, Gale or Thebes in Illinois, and of divisions of the joint rates accruing to respondents on traffic moving through such gateways between such points in southwestern territory and points in eastern territory that lie east of the Illinois-Indiana state line.
The Commission made a report (148 I. C. C. 457) in which among other things it found (p. 477):
Existing divisions were established for the most part about 35 years ago and conform to no logical or consistent basis. They are considerably more favorable to the western trunk lines in case of oil and lumber than in case of p. 79other traffic. Transportation conditions have changed materially since most of the divisions were established and the changes have benefited the southwestern lines more than they have those in the other group. And the trend is distinctly in favor of the former. In respect of density of traffic, transportation conditions are more favorable in western trunk line territory, but conditions vary in different parts of that territory and are considerably more favorable in Illinois than in the other States included in that region and are progressively less favorable from east to west. The difference in transportation conditions is reflected in the level of rates in the two territories. It is not possible from the record to determine just what the average difference is but it appears to be greater than the difference in average transportation conditions. This is particularly true of the class rates which are constructed upon somewhat different theories in the two territories and are in process of revision in the western trunk line territory. The cost of operation per ton mile including all expenses, charges and a fair return on investment probably does not average as much as 20 per cent higher in the southwestern territory than in the other group. On the whole the financial condition of the western trunk lines is not as good as that of the southwestern lines.
The report continues (p. 478):
“ The divisions here in issue are dealt with of record on a group basis. They are, in other words, the divisions ‘in the aggregate’ north and south of the gateways named, and no question is raised with respect to the divisions of individual carriers. In our opinion the divisions in issue are not just, reasonable, and equitable. Many of them are unjust to complainants, and some of them are unjust to defendants. To cure their defects, they must be readjusted upon a consistent basis which will as nearly as practicable, reflect, in the light of all the facts of record, the differing conditions in the two territories.”
The Commission found that divisions for the future should be made as follows: The joint rates applicable to traffic moving to or from points in Illinois and Wisconsin should be divided in the proportions that the first-class rate on the southwestern scale for the length of haul south of the gateway and 80 per cent, of such rate for the length of haul north of the gateway, respectively, bear to the total of such assumed rates. Similarly, the joint rates on traffic to or from other points in western trunk line territory should be divided by taking for the northern haul 87 (instead of 80) per cent, of such assumed rate. The western trunk lines’ share of joint rates applicable on the traffic to or from points in the territory east of the Illinois-Indiana line should be determined in like manner on the basis of 80 per cent, of the assumed rate for the northern haul and by deducting 10 cents from that portion. Where differentials are used in the construction of the joint rates, they should be deducted before prorating and added to the division accruing to the carriers in the region where they apply. These rules or formulas were made subject to some exceptions which need not be given.
The report states that the assumed rates are intended to reflect general differences in transportation conditions. The factor of 80 per cent, gives the southwestern carriers an advantage of 25 per cent., and the use of 87 per cent, makes a difference in their favor of about 15 per cent. The Commission found that complexity in the bases to be employed is not desirable, that the differentiation provided for would produce sufficiently accurate and reasonable results and that divisions made in the manner specified will for the future be just, reasonable and equitable.
The southwestern lines presented a petition for rehearing which was denied. But the Commission made an additional report, 156 I. C. C. 94, and modified its findings as to joint rates applicable to traffic to and from points p. 81in Illinois and Wisconsin or in the eastern territory by changing the factor attributable to the haul north of the gateways other than Kansas City from 80 to 75 per cent, of the assumed rate, and by increasing from 10 cents to 15 cents the amount to be deducted from the western lines’ proportion of joint rates applicable to and from points in eastern territory.
On the same day that it announced its second report, June 10, 1929, the Commission made the order. As to the joint rates in question, it directs that the “ just, reasonable and equitable divisions in the aggregate north and south of said gateways ” shall be made in accordance with the findings and formulas above mentioned. Divisions made on the bases prescribed, while decreasing the western trunk lines’ shares on some shipments, will increase them on many more, and it is estimated that the order will operate to give those lines about $3,000,000 annually, over and above what would be yielded to them under existing divisions. This is much less than one per cent, of the total freight operating revenues of the southwestern carriers.
The appellants contend that the Act requires the Commission to determine the divisions of each carrier upon a consideration of its own rights and needs, and does not authorize the Commission to base its order upon group conditions or upon average conditions in the group.
Section 15 (6) provides that whenever, after full hearing, the Commission is of opinion that divisions of joint rates are or will be unjust, unreasonable, inequitable or unduly preferential or prejudicial as between parties thereto, the Commission shall by order prescribe the just, reasonable and equitable divisions thereof to be received by the several carriers. “ In so prescribing and determining the divisions of joint rates, fares and charges, the Commission shall give due consideration, among other p. 82things, to the efficiency with which the carriers concerned are operated, the amount of revenue required to pay their respective operating expenses, taxes, and a fair return on their railway property held for and used in the service of transportation, and the importance to the public of the transportation services of such carriers; and also whether any particular participating carrier is an originating, intermediate, or delivering line, and any other fact or circumstance which would ordinarily, without regard to the mileage haul, entitle one carrier to a greater or less proportion than another carrier of the joint rate, fare or charge.” 49 U. S. C., § 15 (6).
The facts specified above and others necessarily or properly to be taken into account are to be considered having regard to the duty of the Commission, § 15a (2), to establish and adjust rates so that the carriers as a whole in each rate group or territory that the Commission may designate will, under management and expenditures such as are there specified, earn as nearly as may be a fair return upon the aggregate value of their operating property.
The Commission by § 15 (6) is required to consider the condition of each carrier and to determine whether the division of each joint rate is unreasonable or otherwise repugnant to the specified standards and what division will for the future be just, reasonable and equitable. United States v. Abilene & So. Ry. Co., 265 U. S. 274, 291. The Commission may not change an existing division unless it finds that division unjust or unreasonable. Brimstone R. R. Co. v. United States, 276 U. S. 104, 115. Cf. Interstate Commerce Commission v. Louisville & Nashville R. R., 227 U. S. 88, 92. But it need not under all circumstances take specific evidence as to each rate of every carrier. When considering divisions of numerous joint rates applicable to traffic passing through gateways between different territories the Commission may p. 83make the required determinations and establish the bases for divisions between groups of carriers in the respective territories upon evidence which it reasonably may deem typical and to have sufficient probative weight to justify the necessary findings and the order in respect of each rate. That is to say, such typical evidence may sufficiently disclose the facts necessary to enable the Commission duly to consider the divisions of each joint rate to be received by every carrier. New England Divisions Case, 261 U. S. 184, 191, 196, 199. Brimstone R. R. Co. v. United States, supra, 116.
The evidence before the Commission is sufficient to disclose as to each carrier all the facts specified in § 15 (6) and to furnish an adequate and reasonable basis for the proper division of each of the joint rates applicable to the traffic here involved. The mere fact that carriers and divisions were dealt with on an average or group basis does not indicate that the Commission did not properly consider each carrier and rate or that it did not duly take into account the facts specified in § 15 (6) or that it failed to obey the statute in any respect.
Appellants assert that the order is based solely upon a comparison of average conditions of widely dissimilar carriers comprising each group and that its enforcement will bring about divisions so unjust and arbitrary as to be beyond the Commission’s power. They show by the record that in each group there are carriers that earn little or no return, others that earn substantial amounts and some that make relatively high returns. They strongly emphasize that the prescribed divisions will operate in some instances to transfer substantial sums from very weak carriers in southwestern territory to prosperous ones in western territory, and insist that mere comparison of returns demonstrates that divisions on a group basis will be unjust and arbitrary. It seems to us that the table p. 84included in the first report (p. 476), and others received in evidence1 show as between individual carriers in each p. 85group so wide a range of rates of return that, if approximate similarity in that respect is essential to the order, its basis cannot be sustained.
1
The Commission found that rates of return for individual carriers, namely, the principal Chicago-St. Louis and Chicago-Kansas City Unes and the prominent southwestern lines, were as follows in 1922 to 1925, inclusive: 1922 1923 1924 1925 Per Per Per Per Western Trunk Lines: Cent Cent Cent Cent Chicago & Alton............................ 1.05 3.59 2.86 2.87 C. & E. I........................................ 3.03 3.82 1.62 2.37 C. B. & Q......................................... 4.52 4.29 4.80 4.60 C. G. W........................................... .19 1.54 1.59 • 1.48 C. M. & St. P................................. 1.90 2.81 2.57 2.27 Illinois Central............................... 5.92 5.17 4.76 4.76 Wabash............................................. 1.77 3.84 3.85 4.84 Southwestern Lines: A. T. & S. F.............................. 4.61 5.17 4.63 5.16 G. C. & S. F.................................... 6.05 5.67 9.04 7.55 H. & T. C...................................... 4.30 4.44 5.28 4.33 H. E. & W. T............................ 2.26 1.75 1.91 7.21 I. G. N............................................. 2.87 4.98 5.63 4.52 K. C. M. & 0................................ Deficit .22 Deficit .24 K. C. M. & 0. of Texas....... Deficit Deficit 2.41 - .47 K. C. S............................................. 2.88 2.60 2.85 3.49 M. K. T........................................... 4.72 3.78 4.29 4.96 M. K. T. of Texas........................ 1.63 1.56 5.03 3.28 Mo. Pac........................................... 2.09 2.21 3.81 4.14 St. L. S. F...................................... 3.99 4.72 5.05 5.23 St. L. S. W...................................... 7.05 7.44 4.97 4.81 St. L. S. W. of Texas................. Deficit Deficit 1.33 1.46 Texas & Pacific.......... ................... 2.72 3.84 4.15 4.11 The appellants in their brief suggest that the record shows similar data as to other carriers who were respondents before the Commission : Rate of Return 1922 1923 1924 1925 Per Per Per Per Western trunk line respondents: Cent Cent Cent Cent Chicago & Northwestern Ry. Co... 3.47 3.04 3.23 4.14 Chi., St. P., Mpls. & Omaha............. 4.11 3.32 3.73 3.46
“ Average ” as used in the report manifestly is not intended to refer to an arithmetical calculation, the quo-
--------Rate of Return---------
1922 1923 1924 1925
Western trunk line respondents—Con. Per Per Per Per Minneapolis & St. Louis................... 1.32 1.22 Deficit .36 Mpls., St. P. & S. Ste. Marie........... 3.31 3.75 3.04 4.10 Q., 0. & K. C. R. R.......................... DeficitDeficit Deficit Deficit Southwestern respondents:
Gulf Coast Lines.................................. 6.85 8.52 9.68 9.79
The Beaumont, Sour Lake &
West. Ry. Co.
New Orleans, Tex. & Mexico Ry.
Co.
St. Louis, Brownsville & Mex.
Ry. Co.
Ft. Worth & Denver City Ry. Co.. 7.40 8.63 10.52 9.19 Sou. Pac. Lines in Tex. and La.... 2.35 2.43 3.97 3.27
Galveston, Harrisburg & S. A.
Ry. Co.
Houston & Shreveport R. R. Co. Louisiana Western R. R. Co. Morgan’s La. & Tex. R. R. & S. S. Co.
Texas & New Orleans R. R. Co.
*
Houston & Tex. Central R. R. Co.
*
Houston East & West Tex. R. R. Co. Kansas, Okla. & Gulf Ry. Co......... 2.80 1.31 .17 Deficit Louisiana Ry. & Navigation Co.... .39 Deficit Deficit Deficit
**
San Antonio & Aransas Pass Ry... .95 3.12 2.71 Vicksburg, Shreveport & Pacific... 3.39 6.16 4.00 5.01
*
The rates of return of the Houston & Texas Central R. R. Co. and Houston East & West Texas R. R. Co. were shown in the Commission’s table, but the rates of return for the other respondents which form parts of the Southern Pacific System were excluded.
**
Included as part of Southern Pacific Lines in 1925.
tient of a sum divided by the number of its terms. It is rather to be understood as an estimated general mean of the conditions of the several carriers constituting each group arrived at by the exercise of judgment upon the facts shown by the evidence. The reports satisfactorily show that the findings as to average group conditions taken as a whole are sustained by substantial and persuasive evidence. But they do not deal with the important question whether, under the evidence and having regard to the wide dissimilarities between rates of return earned by individual carriers in each territory, the use of the average or group basis is justified and whether it will produce unreasonable divisions. The general statements in the reports to the effect that the Commission in reaching its conclusions considered all the pertinent evidence add nothing to the prima facie presumption that generally attends determinations of the Commission. Bluefield Co. v. Public Service Commission, 262 U. S. 679, 688-689.
The Commission’s failure specifically to report the facts and give the reasons on which it concluded that under the circumstances the use of the average or group basis is justified leaves the parties in doubt as to a matter essential to the case and imposes unnecessary work upon the courts called upon to consider the validity of the order. Complete statements by the Commission showing the grounds upon which its determinations rest are quite as necessary as are opinions of lower courts setting forth the reasons on which they base their decisions in cases analogous to this. Wichita R. R. v. Public Utilities Commission, 260 U. S. 48, 58. And we have recently emphasized the duty of such courts fully to state the grounds upon which they act. Virginian Ry. v. United States, 272 U. S. 658, 675. Lawrence v. St. Louis-San Francisco Ry., 274 U. S. 588, 591-592. Arkansas Commission v. Chicago, R. I. & P. R. Co., 274 U. S. 597, 603. Hammond n . Schappi Bus Line, 275 U. S. 164, 171. Cleveland, C., C.
& St. L. Ry. v. United States, 275 U. S. 404, 414. Baltimore & Ohio R. Co. v. United States, 279 U. S. 781, 787. And the Commission is not excused by the fact that the carriers presented evidence on a group basis or by the omission of the southwestern lines in their petition for a rehearing to object to the use of averages. The proceedings before the Commission were for the determination of what divisions are and for the future will be reasonable. Here the issue is whether the Commission’s amended determinations and the order based on them are valid. Appellants are not estopped from assailing the averages or groups adopted. A sound basis for the rule or formula prescribing the divisions is essential to compliance with the Act.
With this criticism of the reports, we turn to what is shown by the record. A study of the facts that may be gleaned from the latter leads to the opinion that, notwithstanding the wide differences in rates of return between carriers the basis adopted will not, at least on that account, result in unjust and unreasonable divisions. The Commission must consider the financial condition of the carriers but it is not required to make that the only test. And it did not take the average of the rates of return as the sole or principal factor for making the divisions. As to each carrier, operating and other conditions were shown and presumably considered by the Commission in deciding whether average or group conditions might appropriately be used. It is not shown that the order will require any service to be rendered at less than cost. It is impossible to make divisions that will yield the same rate of profit to each carrier or upon every commodity or shipment moved by it. The average cost of service was apparently given much weight. It is not suggested that the operating expenses of each carrier attributable to the traffic in question vary as does its rate of return on its business as a whole. Nor does it appear that the p. 88carriers having the highest rates of return from their total business or from that in the territory in which they belong, move the traffic in question at comparatively low costs. Returns from total business of a carrier and the cost of handling the traffic covered by the joint rates are not dependent upon the same facts; the relation between them is slight and remote. For aught that appears the carriers having little or no return on their total business may move the traffic in question at low costs and realize a satisfactory percentage of profit on that part of their business.
Other things being equal, divisions made on the mileage basis will be the same as those made on the basis of relative costs. The Commission found that existing divisions give southwestern lines over 30 per cent, more than their mileage prorate and the order leaves them substantially more than would divisions on that basis. This indicates that the Commission considered the relatively high costs at which the southwestern lines, or some of them, moved the traffic in question. The fact that average conditions affecting cost of transportation in the two groups have changed and are still growing more favorable to the southwestern lines tends to justify a reduction of their existing divisions. The greater density found in western trunk line territory makes for lower costs, and that is shown to have been taken into account. Appellants have not sustained their contention.
Appellants claim that the Commission’s order, if enforced, will operate to deprive them of their property without due process of law in violation of the Fifth Amendment to the Constitution.
It is well-established by the decisions of this court that, in order to invoke such constitutional protection, the facts relied upon to prevent enforcement of rates prescribed by governmental authority must be specifically alleged and from them it must clearly appear that the enforcement p. 89of the measure complained of will necessarily deny to the utility the just compensation safeguarded to it by the Constitution. Aetna Insurance Co. v. Hyde, 275 U. S. 440, 447-8, and cases cited. Here the joint rates themselves are not assailed as too low, but the claim is that the prescribed divisions are confiscatory. The same rules as to pleading and proof apply to orders prescribing divisions as to laws fixing rates. There is no allegation in the complaint, or evidence in the record to show, that any division to any of the appellants will not yield operating expenses chargeable to the service covered by it plus a reasonable return on property value fairly attributable to that service. There is no foundation in the record for the contention.
Appellants contend that the provision of the order that applies to the division of revenue derived from traffic between points in the eastern territory and points in the southwestern territory is unlawful because the eastern carriers were not before the Commission and for lack of evidence to show whether the divisions received by them are just.
Section 15 (6) empowers the Commission to determine and prescribe divisions of joint rates “ as between the carriers parties thereto ” and requires it when so doing to consider the condition and needs of each participating carrier. The eastern carriers are parties to the joint rates covering the whole movement. The reasonableness of such rates is not involved. Every carrier, and there may be many, participating in the haul is entitled to its just share. The record, and especially testimony given in the District Court, shows that there is and long has been a primary division of such joint rates, one part for the carriers participating in transportation east of the Mississippi river and the other part for those hauling to or from that point. Cf. Terminal R. R. Assn. v. United States, 266 U. S. 17, 30. The proceedings here under p. 90consideration involve only the subdivision of that part of the revenue accruing to southwestern lines and western trunk lines for service performed west of the “ breaking ” point at Mississippi river crossings. The eastern carriers are not at all concerned in this subdivision. In proceedings concerning subdivisions of revenues assigned to the western part of the service, it is competent for the Commission to assume validity of the joint rates, their primary divisions and the subdivisions to cover the haul east of the river. The Act does not require all questions concerning all divisions of such joint rates to be determined in one proceeding. United States v. Abilene & So. Ry. Co., supra, 282. New England Divisions Case, supra, 201. There was no defect of parties.
In their brief appellants suggest other grounds on which they claim the order should be annulled. But we think them plainly insufficient to warrant reversal and that, in view of what already has been shown in this opinion, they do not merit separate discussion.
The cross appeal was taken by the United States and the Interstate Commerce Commission; the other appellees, western trunk lines, did not join therein. The investigation was pending for more than five years before the first report was announced, December 10, 1928. No order was then made. The Commission allowed the carriers 60 days within which to agree on readjustments. In the report on rehearing, June 10, 1929, the Commission characterized the issues as important and the questions raised as relatively new and difficult. The order was made on the same day to take effect August 1, 1929. Before that date this suit was commenced, and the Commission postponed the taking effect of the order until December 1, 1929. In the meantime the case was tried and decided. It is clear that the Commission did not find that any emergency existed.
The decree dismissing the case was entered November 27, petition for appeal was filed that day and allowed November 30. Appellants applied for a stay. The time elapsing between the decree and the postponed effective date of the Commission’s order was not sufficient to permit the giving of notice to appellees. The court found that novel and important questions concerning which there was serious doubt were presented by the assignment of errors; that if appellants, pending the appeal, paid the prescribed divisions and the order finally should be annulled they would be in danger of not being able to recover back the amounts in excess of existing divisions because of the financial condition of some of the western trunk line carriers; that as the prescribed divisions did not apply to all joint rates between the two territories, confusion and large useless expenditures would result if the order were enforced pending the appeal and the decree should be reversed; that the public interest would not suffer in any manner by reason of the stay and that the rights of the western trunk lines could be protected by bond. The stay was granted on appellants’ giving a bond for $3,000,000 for the protection of the carriers to whom the order required payments of higher divisions.
Western trunk lines applied to have the stay vacated. After hearing and consideration of the showing and arguments made by the parties, the court reaffirmed its earlier findings and conclusions and further found that since the court’s decision the interested carriers including appellants had worked diligently to establish the various percentages to be used in making the new divisions and that the work could not be completed for several months. After reviewing the situation the court said that the stay if continued in force would operate to save the carriers much labor and expense whether the appeal should be successful or not.
Syllabus 282 U. S.
Undoubtedly the court had authority in its discretion, upon entry of the decree dismissing the bill, to stay the enforcement of the prescribed divisions pending appeal. Virginian Ry. v. United States, supra, 669. Omaha & C. B. St. Ry. Co. v. Int. Com. Comm., 222 U. 8. 582. Cumberland Tel. Co. v. Pub. Serv. Comm., 260 U. 8. 212, 219. Cotting v. Kansas City Stockyards Co., 82 Fed. 850, 857. The court considered, and it cannot be said without reason, that the questions raised by the assignments of error are novel and doubtful. Unlike the situation presented in Virginian Ry. v. United States, supra, postponement of the taking effect of the order would inflict no loss upon the public—producers, shippers or consumers. It would not unfavorably affect the business of the carriers and, if the western trunk lines should ultimately be held entitled to the higher divisions, they could be protected by bond. We think it clear that the court did not abuse its discretion in granting the stay.
The decrees are affirmed.