Willcox v. Consolidated Gas Company, 212 U. S.
, followed to effect that, where the state court has
found the rate fixed by a state commission on a single commodity to
be not confiscatory and has refused an injunction, the decree will
be affirmed without prejudice to the right of the carrier to reopen
the case if, after adequate trial of the rate, it can prove that it
is actually confiscatory and amounts to a deprivation of property
without due process of law.
17 N.D. 223 affirmed without prejudice.
The facts are stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a proceeding by the Attorney General of North Dakota,
charging the plaintiff in error with continuous violation of a law
fixing rates for the carriage of coal within the state, and asking
for an injunction. See
N.D.Laws of 1907, c. 51. The
railroad answered that the act was void under art. 1, § 8, of the
Constitution, the commerce clause, and also under the Fourteenth
Amendment because the maximum rates fixed by it were inadequate and
confiscatory. Evidence was taken
Page 216 U. S. 580
and reported to the supreme court, and that court decided that
the injunction should issue as prayed. 17 N.D. 223. The grounds of
its decision were that the act referred only to transportation
wholly within the state, and therefore was not bad under Art. I, §
8, thus removing that question, and that the evidence did not prove
that the rates would entail a loss on the carriage of coal, so that
it was not necessary to decide whether, in that event, it would be
unconstitutional if the railroad made a fair profit on its whole
business within the state.
The court did, however, intimate its opinion that, if the
railroad was able to make a fair profit upon its whole business
within the state, it might be required to carry a particular
commodity at cost or possibly below, and it expressed its opinion
so strongly that the counsel for the plaintiff in error treats that
doctrine as the ground of decision, and the statement as to the
insufficiency of the evidence as made only in the light of it, and
upon rather technical grounds. He argues that the evidence was
undisputed, that the facts testified to and the fair inferences
from them must be taken as proved, and that, on those facts and
inferences, the constitutional question is raised. The evidence
consisted of tables of rates in other states, computation as to the
cost of transportation, and expert opinions, all of which were
thought to converge to the conclusion that the statutory rates were
unreasonable and less than the cost of carriage. But, laying
technical objections on one side and taking the facts as admitted,
the argument for the state showed that there are too many elements
of uncertainty in the calculation for us to say, if we could, as to
which we intimate no opinion, that the conclusion is proved, when
the supreme court of the state says that it is not.
The carriage of coal is a very small part of the railroad's
business. The estimate of the cost is admitted to be uncertain, and
to depend in part upon arbitrary postulates. It has to be increased
considerably above the average cost for freight in order to make
out the plaintiff in error's point. We are far from saying that the
argument for doing so does not seem to
Page 216 U. S. 581
us to have considerable probability on its side. We do not say
that experiment may not establish a case in the future that would
require a decision upon the question of constitutional law. But we
can express no opinion upon it now. The great difficulty in the
attempt to measure the reasonableness of charges by reference to
the cost of transporting the particular class of freight concerned
is well known and often has been remarked. It seems to us that the
nearest approach to justice that can be made at this time is to
follow the precedent of Willcox v. Consolidated Gas Co.,
212 U. S. 19
nearly as may be, and affirm the decree, but without prejudice to
the right of the railroad company to reopen the case by appropriate
proceedings if, after adequate trial, it thinks it can prove more
clearly than at present the confiscatory character of the rates for
Decree affirmed without prejudice.
Similar decrees will be entered in Nos. 554 and 555.