(dissenting).
The record in this case discloses it is the desire of the carriers affected to have the same unloading practices in effect at Philadelphia that are in effect at New York, and I will, therefore, confine this dissent to the situation at New York.
In my opinion the majority enlarges the authority of the Interstate Commerce Commission over specific freight rates to unprecedented and unauthorized limits. The Court in effect holds our review of the order of the Commission in this case is limited to the mere matter of due process; i. e., notice and hearing. In reaching this conclusion the court brushes aside the following undisputed factual questions which, in my opinion, are controlling of the case:
1. Unloading at New York was originally inaugurated by the carriers concerned for their own convenience and benefit.
2. It is now and always has been the most economical way the carriers may make deliveries of freight at New York.
3. The line-haul rates were originally established to include and have always included compensation for unloading costs at New York. The Interstate Commerce Commission has so held in numerous cases.
4. When the unloading charges were made effective by the Interstate Commerce Commission the line-haul rates were then, and are now, in excess of just and reasonable rates based upon the cost of transport*426ing and unloading fruits and vegetables at New York.
The first three points stated above are so thoroughly covered and completely presented by the report on rehearing proposed by Russell M. Brown and J. M. Walsh, Interstate Commerce Commission Examiners, and in the second report on further rehearing proposed by J. M. Walsh, Examiner, (Exhibits H and I to the complaint) that the Court considers it quite unnecessary to enlarge upon what the Examiners say on these points in the two reports. They concluded in each report that the carriers failed to meet the burden of proof that the assail charges were just and reasonable, and therefore failed to meet the requirements of Section 15(7) of the Interstate Commerce Commission Act. Having reached this decision, they concluded in the first report that it was unnecessary to consider whether there was also a violation of Sections 2 and 3 of the Act. In the second report Examiner Walsh also found and held that the proposed unloading charges were in violation of Section 3(1) of the Act.
In my opinion the carriers not only failed to meet the requirements of Section 15(7) of the Act, but the evidence in the case also clearly establishes a violation of Sections 2 and 3(1) of the Act. Unloading is performed by the carriers of almost all perishable freight consigned to New York. The unloading charges are made applicable only to fruits and vegetables, while other similar perishable products, such as butter, butter solids, cheese, eggs, dressed poultry, fresh meat, fish, oysters and raw milk, are unloaded by the carrier without the imposition of any unloading charges. This, in my opinion, constitutes a clear violation of Sections 2 and 3(1) of the Act.
The fourth point enumerated above was not considered by the examiners or the Interstate Commerce Commission when this case was before the Commission. The examiners merely held that under Section 15 (7) of the Act, the obligation rested upon the carriers to show the reasonableness of the line-haul rates and it was because of the carriers’ failure to meet this burden that they recommended the proposed unloading charges be cancelled. The Interstate Commerce Commission simply brushed aside the question of the reasonableness of the line-haul rates and decided the case solely on the reasonableness of the unloading charges.
At the time the Commission had this case under consideration it also had under consideration a general application for an increase in freight rates (interstate and intrastate) throughout the United States to meet rising costs and diminishing passenger revenue. As a result of the application for this general increase the Commission allowed a thirty percent increase in freight rates, chiefly to make up for passenger operating deficits. 264 I.C.C. 695; 266 I.C.C. 537; 269 I.C.C. 33; 270 I.C.C. 81, 93, 403. The legality of this action on the part of the Commission was challenged in King v. United States, 344 U.S. 254, 73 S.Ct. 259. On the record in that case the carriers frankly conceded that the railroads of this country by and large are making a substantial profit out of their overall freight service, and that considered alone, increases in freight rates could not have been justified in that case on the ground that the railroads needed the additional revenue to pay the cost of rendering freight services and a fair return on the property devoted to such services. The difference between that case and this case is of grave importance as to the power of the Interstate Commerce Commission over freight rates. In the former case there was a general increase made in freight rates to cover the heavy losses resulting from passenger operations. Congress having authorized such action and the Interstate Commerce Commission having taken such action, the Court did not have the authority to override the same. In this case, however, the carriers have limited their efforts to secure increases in rates to a small segment of freight transportation and the Commission by its order has cast a burden upon this small segment of transportation that is not placed upon any other commodities. To hold that the Interstate Commerce Commission has the authority under the Interstate Commerce Act to so discriminate against fruits and vegetables or any other *427classes of commodities is to vest in the Commission authority not to be found in the Interstate Commerce Act. The decision in King v. United States, supra, is so far-reaching in its effect upon freight rates that a grave -duty rests upon the Courts to restrict the carriers and the Commission to the principles announced in that case and where, as in this case, it appears that the line-haul rates are in excess of just and reasonable rates additional accessorial charges limited to particular classes of freight should not be countenanced.
Assuming the carriers are entitled to additional compensation for the cost of unloading freight at New York and Philadelphia, their remedy, under the Interstate Commerce Act, is to secure it by agreement with connecting carriers affected or make application to the Commission for a greater division of the line-haul rates to cover the needed additional costs instead of loading such costs on the farmers of this country.
In my opinion, the order of the Commission of May 7, 1952, 286 I.C.C. 119, clearly violates Sections 2, 3(1) and 15(7) of the Interstate Commerce Act and, for this reason, is illegal and should be set aside.