104 Argument for Appellant. (3) Section 15 (6) authorizes the Commission to readjust divisions already received only when the joint rate was established pursuant to a finding or order of the Commission made under § 15 (1) or (3), after full hearing in respect of the specific rate. Mere permission granted by the Commission to increase or diminish all rates according to the needs of carriers throughout the country, is not enough. P. 125. 17 F. (2d) 165, reversed. APPEAL from a decree of the District Court sustaining an order of the Interstate Commerce Commission in a suit brought by the appellant to annul it. The nature of the order is fully explained in the opinion. Mr. C. R. Liskow, with whom Messrs. James T. Kilbreth and Wylie M. Barrow were on the brief, for appellant. The Commission is without power to determine the divisions, except as between the carriers party to the rates, and except after a hearing and investigation of the operating expenses, taxes and other facts and circumstances connected with the operation of each of the several carriers participating in such joint rates. Akron, etc. v. United States, 261 U. S. 184; United States v. Abilene & Southern Ry., 265 U. S. 274. The Commission is without power to establish divisions of joint through rates to be applied prior to the date of its final order and retroactively unless and until the joint rates, of which such divisions form a part, have been established pursuant to a finding or order of the Commission, which must have been made under the provisions of § 15 (3) of the Interstate Commerce Act. The lower court erred in holding that the increase in rates allowed by Ex Parte 74 Increased Rates, 58 I. C. C. 220, was the establishing of joint rates. Virginia Railroad Co. v. United States, 272 U. S. 658. The report and order of the Commission, of December 14, 1925, results in the taking of the property of the Argument for the United States. 276 U.S. Brimstone without due process of law and the confiscation thereof in violation of the Fifth Amendment. The divisions received by the Brimstone had all been proportionately reduced by § 15 (2) of the Interstate Commerce Act before collection, and the Government has appropriated the excess net railway operating income of the Brimstone over 6 per centum per annum on the value of the carrier's property used in the service of transportation. Mr. Blackburn Esterline, Assistant to the Solicitor General, with whom Solicitor General Mitchell was on the brief, for the United States. The Commission not only had the authority, but it was its duty, to investigate and consider the one enterprise and single investment which is the dominant feature of this case. It falls clearly within a line of cases in which the one enterprise and single investment arrangement has been condemned repeatedly. United States v. Koenig Coal Co., 270 U. S. 512; The Tap Line Cases, 234 U. S. 1; O'Keefe v. United States, 240 U. S. 294; Manufacturers Rwy. v. United States, 246 U. S. 457. See also Industrial Rwys. Case, 29 I. C. C. 213; Id. 32 I. C. C. 129; Second Industrial Rwys. Case, 34 I. C. C. 596; Chicago, West Pullman & Southern R. R., 37 I. C. C. 558; Chestnut Ridge Rwy., 41 I. C. C. 62; Chestnut Ridge Rwy. v. United States, 248 Fed. 791; Louisiana & Pine Bluff Rwy. v. United States, 257 U. S. 114; Northampton & Bath R. R. 41 I. C. C. 68; Owasco River Rwy., 53 I. C. C. 104; Lake Erie & Fort Wayne R. R., 58 I. C. C. 558; Birmingham Southern R. R. v. Director General, 61 I. C. C. 551. If the Commission must keep the case open in order that new testimony may be taken each year, and from year to year, on operating expenses or other subjects, it would be impossible to fix the divisions. The statute does not require that hearings shall be perennial. There 104 Argument for the Commission. is no presumption that the Commission was considering matters aliunde. The Commission had the authority under the statute to make its order effective as of August 1, 1921, the date of the order of investigation, and the District Court was right in so holding. If appellant, by the order of the Commission, has received all it is entitled to under the law, the adequacy or inadequacy of the amounts left for Louisiana Western and Kansas City Southern would seem to be a matter with which appellant has no concern. New England Divisions Case, 261 U. S. 184; United States v. Abilene & Southern Ry., 265 U. S. 274. Mr. D. W. Knowlton, with whom Messrs. E. M. Reidy and P. J. Farrell were on the brief, for the Interstate Commerce Commission. Where the need for action is merely the fixing of an industrial short-line's division, the Commission may fix separately such division while regarding the remainder of the joint rate as a joint division or joint proportion going to the carriers participating in the traffic beyond the industrial carriers' junction with the connecting trunk line, and in such case due consideration is given to the factors named by respectively considering the adequacy with relation to those factors of the separate division for the individual needs of the industrial carrier on the one hand and the adequacy with relation to those factors of the remaining proportion for the joint needs of the remaining carriers on the other. Where the separate fixing of an industrial carrier's division results in an increased proportion going to the trunk-line carriers, due consideration of the factors named does not require the submission of the same involved cost studies and detailed evidence in respect of the thousands of miles of road operated by the trunk lines as was found Opinion of the Court. 276 U.S. practicable in separately fixing the division of the industrial line, for, on the one hand, the interests of the trunk lines and that of the public in their efficient service has been promoted by the action taken, and, on the other hand, the fair return of the industrial line and interest of the public in its efficient service has been safeguarded by careful consideration given to detailed evidence. In reducing the Brimstone's division and consequently fixing an increased proportion for the remaining carriers, the Commission gave, with relation to the factors named, the due consideration to the Brimstone's requirements and to the joint requirements of the remaining carriers which the Act called for under the circumstances obtaining. Such adjustment of divisions was not retroactive in the sense that it took from the Brimstone, revenue to which it was ever properly entitled. The divisions and adjustment thereof ordered by the Commission, were of joint rates established pursuant to findings or orders rendered by the Commission in certain general rate-group proceedings, known as Increased Rates, 1920, 58 I. C. C. 220; and Reduced Rates, 1922, 68 I. C. C. 626, thereby strictly conforming not only with the letter of the divisions paragraph of the Act, but to its purpose as well, which is particularly directed toward effecting distribution commensurately with individual carrier needs of revenues derived from rates established in just such general rate-group proceedings, wherein aggregate carrier needs and property values constitute the prescribed rate bases and individual carrier needs are necessarily disregarded for the time being. MR. JUSTICE MCREYNOLDS delivered the opinion of the Court. Appellant seeks annulment of an Interstate Commerce Commission order, entered December 14, 1925, which designated the divisions it might thereafter receive from 104 Opinion of the Court. agreed joint rates and required readjustment of divisions received subsequent to August 1, 1921, when the investigation began. The Court below dismissed the bill. Two of the objections to the order, there advanced, will be considered. 1. The Commission failed to investigate or determine the reasonableness or justness of the divisions, or whether they were unjust, unreasonable, inequitable, or unduly preferential or prejudicial, as between the carriers; also failed to consider whether the circumstances entitled one to a greater or less proportion than another of the joint rates, as commanded by Section 15(6), Transportation Act, 1920. (41 Stat. c. 91, p. 456.) 2. The joint rates were agreed upon by the parties and not "established pursuant to any finding or order" of the Commission, within Section 15(6), Transportation Act, 1920. Consequently, the Commission had no power to require adjustments for any period prior to the final order. Section 1(4) Transportation Act, 1920, directs common carriers to establish through routes, reasonable and equitable rates, fares and charges; also to establish divisions of joint rates just, reasonable and equitable as between the participants, which shall not unduly prefer or prejudice any of them. Section 15(1) empowers the Commission whenever, after full hearing, it shall find any rate charged by a carrier is or will be unjust or unreasonable or unjustly discriminatory or unduly preferential, or prejudicial, or otherwise in violation of this Act, to determine and prescribe the just and reasonable rate thereafter to be observed, and to make an order requiring the carrier to cease and desist from such violation. Section 15(3) provides that "the Commission may, and it shall whenever deemed by it to be necessary or desirable in the public interest, after full hearing," establish joint |