I agree with the court’s opinion and its comment that the rule we adopt in construing the statute “will give rise to difficulties in respect to losses and also in respect to unusual or unanticipated earnings”1 but I am unable to agree that “much of the anticipated difficulty can be prevented by expedition on the part of the Board.” 2 I think these difficulties or “other difficulties [which might] arise from any other rule” 3 are inherent in the statute and will persist so long as there is no express differentiation therein between compensation for mail service and need payments to subsidize the development of air transportation. This is so because the absence of such a distinction, says the Supreme Court, requires the application of traditional principles of rate making.4 The effect of this is to make applicable to subsidy as well as compensation payments the familiar principle that “past excessive earnings belong to the [carrier] just as past losses must be borne by it.” 5 Therein lies the mischief. For that principle derives its validity from the premise that rates are calculated to allow for some financial risk on the part of the public utility.6 But since the very purpose of need or subsidy payments is to remove any vestige of risk, that principle has no place in fixing such non-rate payments.
. Majority opinion, 92 U.S.App. D.C. 253, 207 F.2d 205.
. Ibid.
. Ibid.
. Transcontinental & Western Air v. Civil Aeronautics Board, 1949, 336 U.S. 601, 605, 69 S.Ct. 756, 93 L.Ed. 911.
. Washington Gas Light Co. v. Baker, 1950, 88 U.S.App.D.C. 115, 125, 188 F.2d 11, 21, certiorari denied, 1951, 340 U.S. 952, 71 S.Ct. 571, 95 L.Ed. 686. And see my concurrence this day in Summerfield v. Civil Aeronautics Board, 92 U.S. App.D.C. 256, 207 F.2d 207.
. Ibid, and cases cited in note 15 therein.