United States v. Baltimore & Ohio Railroad , 52 S. Ct. 109 ( 1931 )

Mr. Justice Stone,

dissenting.

The first order of the Commission, without regard to its later ones, should, I think, be held valid and operative thirty days from its date. Dated November 5, 1927, it directed that the “ complainant shall receive a division of 220 per hundred pounds” of the joint rate on silk from Pacific coast points to destinations on its line. It specified that it should take effect as of an earlier date,. August 6, 1926, “ and shall continue in force until the further order of the commission.” For present purposes, we must assume that it was supported by evidence and was intended to remove a division of the joint rate, which was grossly unfair to appellant.

The Commission, as this Court later decided in Brimstone Railroad & Canal Co. v. United States, 276 U. S. 104, was without authority to order a division of rates as to the past, but it did possess the power to order a division for the future, and sought, by an unambiguous use of words, to exercise it. Yet, it is held by the Court that the order is invalid in its entirety and, in consequence, the appellants lose the benefit of it, not only for the designated period antedating the Commission’s action, but for the four years which have since elapsed, because the order did not, as required by § 15 (2) of the Transportation Act of 1920, prescribe a time at least thirty days from its date when it was to take effect. The section provides that orders of the Commission “ shall take effect within such reasonable time, not less than, thirty days, arid shall com tinue in force until its further order or for á specified period of time,, according as shall be prescribed by the order.” On its face the statute would seem merely to curtail the power of the Commission to make its ordér effective within thirty days, rather than to require' the order to specify some particular date beyond the thirty day period when it should be effective.

But granting that the latter is the requirement of the statute, I fail to perceive in the present order any such failure to specify the time of its operation as would render it invalid as to the divisions which the Commission had power to make. It would not, I think, occur to anyone unfamiliar with legal niceties that the order failed to 'prescribe a time for its operation with respect to the future. It bore a date and in terms said that the division ordered should take effect as of an earlier named date and should continue in force until further order of the Commission. Thus the order prescribed that it should operate in the future as well as in the past, on the 31st and future days as well as on the 30th and each earlier day after its date. In view of the nature of the subject matter, the removal of an unjust apportionment of a through rate, it cannot be said that the Commission did not intend it to operate on the 31st and later days, even though it should turn out that there was a lack of power to order the division as to earlier dates. See United States v. Chicago, M., St. P. & P. R. Co., 282 U. S. 311.

•But it is said, in effect, that since the order is void so far as it applied to a past period, identified by named dates, that part of it is as though it had never been written and, hence, the order when applied to the future must be read as though it specified no time for its operation. But the mere fact that the Commission commanded, in a. single writing, some things which were beyond its power, together with others that were not, could not erase from the document either the dates or the words or change their meaning or preclude our looking at them to see in what manner and to what extent the Commission exercised the power it did possess. Looking at the words I cannot say that the older, so far as it directed the division after thirty days from its date, did not comply with '§ 15 (2), or that it can rightly be set at naught regardless of the nature and amount of the evidence/supporting it.

Mr. Justice Holmes and Mr. Justice Brandéis concur in this opinion.