(concurring in part and dissenting in part):
For the reasons set out in my opinion in today’s companion case, Democratic Central Committee v. WMATC, No. 21865, 158 U.S.App.D.C. 7, 485 F.2d 786 (hereinafter No. 21865), I concur generally in this decision, dissenting only from Part II (and Part V insofar as it necessarily directs the Commission to remedy the alleged defects delineated in Part II).
I would just like to add that it seems odd that the majority in this case manages to find some sort of “iinplieit” legislative intent in the Franchise Act (granting Transit its charter) that mandates the result reached. This intent is apparently derived from Congress’ total silence on the subject which the majority interprets as meaning that Congress could not have intended any result other than that reached in this case. It is argued, supra at 898, 902, that nothing in the Act suggested that gain should accrue to the investors. Yet since that would have been the result absent any provision to the contrary, Congress’ silence on the matter would seem infinitely more supportive of an implicit acquiescence in awarding the gain to the investors rather than the converse as argued by the majority, supra at 902. This strikes me as a very weak strut to support the logic of the majority’s decision and is really nothing more than a restatement of the view that the history and circumstances of Transit are such that it would be desirable to award any and all gains to the farepayers. Here the majority seeks to clothe its basic equitable arguments in the garb of congressional intent. As an indication of a desperate need to lend some legal substance to its vague equitable leanings, this tactic serves only to weaken the majority’s position, rather than strengthen it.
Transit was taken over by the public authorities on January 14, 1973 and the operating officials are already considering demands for fare increases in order to meet operating expenses. This is some indication that the past management was perhaps not as inefficient as has been contended and that the fare increases sought by Transit from time to time over the years were not as unreasonable as their opponents contended. In fact, local fares were generally not out of line with bus fares nationally. For the record there is appended in the margin fares in other comparable urban areas. (Exhibit 14, p. 1).
[See following illustration]
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