349

35

Opinion of the Court.

made are reasonable. Conceding that they have not proved what the exact cost per car mile chargeable to citrus fruit was in the test period, or has been since, or what it will be in the future, they refer to decisions of the commission and of this court 36 recognizing the impossibility of making exact proof of cost of transportation of any commodity and indicating that sometimes resort must be had to system average costs. They emphasize the fact that railway cost accounting cannot with exactness apportion to one commodity its fair proportion of cost incurred in common with transportation of other freight or of passengers; insist that special cost studies in this case would have been impracticable; urge that they should not be held to impracticable exactness, and that reasonable determinations are sufficient.37

Appellees call attention to the commission's rejection of the average unit costs as a method of approximating cost of handling a single commodity.38 They seek to discredit appellants' method by showing it would prove confiscatory the divisions that for a long time they had accepted. Their evidence tends to show: Much of the operating expenses chargeable to maintenance of way, maintenance of equipment and transportation is not affected by volume of traffic, and therefore the greater the

25 Citing Sloss-Sheffield Steel & Iron Co. v. L. & N. R. Co., 30 I. C. C. 597, 602. Sugar from Key West, 112 I. C. C. 347, 348. Georgia Public Service Comm'n v. Atlantic Coast Line R. Co., 186 I. C. C. 157, 187.

Citing Atlantic Coast Line v. Florida, 203 U. S. 256, 260. Wood v. Vandalia R. Co., 231 U. S. 1, 6, 7.

38

"Florida v. United States, 292 U. S. 1, 9.

Citing Iron Ore Rate Cases, 41 I. C. C. 181, 281. California Growers' & Shippers' Protective League v. S. P. Co., 129 I. C. C. 25, 52. Georgia Public Service Comm'n v. Atlantic Coast Line R. Co., 186 I. C. C. 157, 183. R. W. Burch, Inc. v. Railway Express Agency, 190 I. C. C. 520, 535; 197 I. C. C. 85.

number of units of service the less the cost per unit; the very large volume of citrus fruit hauled by the Pennsylvania from Potomac Yards makes for low cost per car mile. Terminal services are not affected by length of haul. The Pennsylvania citrus fruit average haul, loaded and empty, being much greater than the system average haul, apportionment on a car mile basis makes for excessive assignment of terminal operating expenses to citrus fruit. And they rightly say that opinions of experts unsupported by adequate actual tests may not safely be substituted for concrete data.39

The burden on appellants, heavy though it is, does not require them to prove with arithmetical accuracy the cost of the transportation covered by the challenged divisions or the value of the property used to perform it, or the proportion attributable to that service. It is enough, if the evidence preponderating in their favor reasonably warrants findings sufficient to support the decree sought. Many issues as to which demonstrable accuracy is impossible have to be decided by the courts. In ascertaining cost of transportation of one out of many commodities hauled by railroads it is impossible to attain precision. Mere lack of it is not ground for objection either to the evidence offered or the facts which it tends to prove. 10

We may say at once that no substantial weight is to be given to appellants' comparison of divisions prescribed for northern carriers with those given the southern lines. As shown above, the commission acting under § 15 (6) was dealing merely with fairness of divisions of a joint

"Northern Pacific Ry. v. North Dakota, 216 U. S. 579, 580. Knoxville v. Knoxville Water Co., 212 U. S. 1, 18. Minnesota Rate Cases, 230 U. S. 352, 466. Missouri Rate Cases, 230 U. S. 474, 507. Cf. Pacific Gas Co. v. San Francisco, 265 U. S. 403, 406. McCardle v. Indianapolis Co., 272 U. S. 400, 416.

40

'Chicago, M. & St. P Ry. Co. v. Tompkins, 176 U. S. 167, 178.

rate and not with just compensation within the meaning of the Fifth Amendment.

The commission's statement to the effect that citrus fruit transportation service "is undoubtedly more expensive than the ordinary run of freight" is not entitled to any weight, for it does not appear that the statement referred to cost per car mile. For aught that appears, some other unit may have been meant. And, as they lack disclosed definite bases of established fact, no weight may be given to cited opinions of appellants' expert witnesses to the effect that citrus fruit car mile cost is higher than system average.

Nor is there any force in appellees' suggestion to the effect that the evidence on which appellants seek to prove the prescribed divisions confiscatory would similarly condemn divisions that they accepted for a long time prior to the reduction of the joint rates November 9, 1928. As shown above, carriers advantageously to themselves and the public may and sometimes do apply rates and divisions that are lower than they could be compelled by law to accept.

The test period 1928-29 ended more than: one year before the first complaint to the commission, four years before its final decision and the commencement of this suit, five years before entry of the decree appealed from, and six years before submission to this court. In that period there intervened a profound business depression out of which there has been some progress."1 The evidence fails to show that the relation of citrus fruit car mile cost to the system average has remained the same as appellants claim it was in the test period. Appellants should have brought forward evidence and estimates. based on operations subsequent to the complaint, No

41

Atchison, T. & S. F. Ry. Co. v. United States, 284 U. S. 248, 260, 261. Los Angeles Gas Co. v. Railroad Comm'n, 289 U. S. 287, 311. Great Northern R. Co. v. Weeks, 297 U. S. 135.

vember 22, 1930, and also as near as possible to the time of trial in the district court. The order prescribing the challenged division has been in effect for a long time, and in the absence of proof clearly showing that on the basis of present and prospective conditions it is confiscatory, its enforcement ought not to be enjoined.

Appellants' evidence was addressed primarily to the question whether as to citrus fruit traffic moving through the Richmond gateway the prescribed divisions were confiscatory. In determining whether as to any carrier that evidence was sufficient, appellants' estimated citrus fruit car mile cost is of prime importance. A slight variation in that figure is sufficient to change the balance from one side of the account to the other; to change surplus revenue to deficit. If since the order took effect that cost has been, or in the immediate future will be, substantially less than the contemporaneous system car mile cost, appellants' proof is not sufficient to show confiscation. It is very difficult to attain the high degree of certainty in respect of this vital factor that is obviously necessary to make dependable proof.

Operating expenses are incurred in innumerable services few of which, if any, are the same in respect of car mile cost as is the transportation of citrus fruit here in question. There are many elements that affect system average that have no relation to citrus fruit car mile costs. It would seem that, without specific knowledge of details of operation affecting cost during representative periods, no dependable opinion could be reached as to the cost relationship on which the appellants' case depends.

The facts that they brought forward to show that citrus fruit car mile cost is at least as high as the system average undoubtedly tend in a general way to aid that contention. But they lack useful certainty. Appellees' criticisms above referred to are substantial and at least sufficient reasonably to warn against acceptance of ap

349

BRANDEIS, J., concurring.

pellants' claim. A very small part of the Pennsylvania system mileage is used to haul substantial quantities of Florida citrus fruit. The principal volume moves over the lines north from Potomac Yards. Ordinarily, density of such traffic would make for lower car mile cost. Appellants claim that there it is relatively high, but the evidence fails adequately to support that contention. Appellants' failure to introduce evidence based on observations or tests made contemporaneously with transportation, in representative periods subsequent to the taking effect of the order and near to the time of trial, strongly suggests that the figures on which appellants' calculations are based could not be supported and leaves in grave doubt the validity of their proof.

We conclude that the evidence is not sufficient to establish with requisite certainty what has been or will be the cost of the service covered by the prescribed divisions and that the district court rightly dismissed the suit.

MR. JUSTICE BRANDEIS, concurring.

Affirmed.

I agree that the suit is without merit and that the District Court was right in dismissing the bill. Two objections to the order of the Commission, unsubstantial but otherwise proper subjects for judicial review, were disposed of briefly below and have rightly received like treatment here. It is the third objection—the claim of "confiscation" to which the attention of both courts has been directed. That claim imposed upon the lower court six days of hearings. It imposed upon this Court a reargument and a huge record. With the briefs, it weighs avoirdupois 67 pounds. The narrative statement of the testimony occupies 1237 pages of the printed record in this Court; the briefs fill 546 pages. There are, besides, 428 exhibits. In my opinion, the applicable rules of procedure forbade the lower court from passing upon the