(dissenting).
The majority opinion as I understand it "rules that under the statute (Act of March 23, 1906, § 4, 34 Stat. 85, 33 U. S.C. § 494 [33 U.S.C.A. § 494]) the Secretary of War, in prescribing “reasonable and just” toll rates for the appellee’s bridge, must take into consideration not merely reasonable return on investment for that bridge but also the effect of the rates for that bridge to divert traffic from, and therefore to reduce the revenues of, the appellant’s bridge.
To rule that the appellant was constitutionally entitled to notice and hearing notwithstanding the absence of provision therefor in the statute I think begs the principal question in the case, which is whether the appellant has any legal right to insist that the Secretary, in prescribing rates for appellee’s bridge, consider their effect upon appellant’s bridge. If the appellant has such a right, it must get it under the statute rather than under the constitution, for the latter does not guarantee such rates for one bridge as will cause a competing bridge to be profitable to its stockholders or to remain a going concern. The statute in terms says nothing of consideration of competitive effects. The Interstate Commerce Act and the decisions thereunder, especially those since 1920, are hardly a dependable guide to a decision here because Congress expressly introduced into the Interstate Commerce Act by the Transportation Act of 1920 (41 Stat. 456, 474-499; 49 U.S.C. § 15a [49 U.S.C.A. § 15a]) the concept, as a factor in prescribing just and reasonable rates, of fair return for “carriers as a whole . . . under honest, efficient and economical management . . .” The Emergency Railroad Transportation Act of 1933 (48 Stat. 211, 220, § 205; 49 U.S.C. § 15a [49 U.S.C.A. § 15a]) retained this concept and made it more specific by requiring the Commission, in the exercise of its power to prescribe “just and *795reasonable” rates, to “give due consideration, among other factors, to the effect of rates on the movement of traffic; to the need, in the public interest, of adequate and efficient railway transportation service at the lowest cost consistent with the furnishing of such service; and to the need of revenues sufficient to enable the carriers, under honest, economical, and efficient management, to provide such service.” Such cases as the New England Divisions Case, 261 U.S. 184, 43 S.Ct. 270, 67 L.Ed. 605, and Railroad Commission of Wisconsin v. Chicago, B. & Q. R. Co., 257 U.S. 563, 42 S.Ct. 232, 66 L. Ed. 371, 22 A.L.R. 1086, made clear that this was a new concept in rate making. In Texas & Pac. Ry. Co. v. Gulf, G. & S. F. Ry. Co., 270 U.S. 266, 46 S.Ct. 263, 70 L.Ed. 578, the Supreme Court expressly recognized the introduction by Congress of this rate making concept. Speaking through Mr. Justice Brandéis, the Court said, in specific reference to the Transportation Act of 1920:
“By that measure, Congress undertook to develop and maintain, for the people of the United States, an adequate railway system. It recognized that preservation of the earning capacity, and conservation of the financial resources, of individual carriers is a matter of national concern; that the property employed must be permitted to earn a reasonable return; that the building of unnecessary lines involves a waste of resources and that the burden of this waste may fall upon the public; that competition between carriers may result in harm to the public as well as in benefit; and that when a railroad inflicts injury upon its rival, it may be the public which ultimately bears the loss.” [270 U.S. at page 277, 46 S.Ct. 263, 70 L.Ed. 578]
The statute involved in the 'instant case has, since the date of its passage in 1906, significantly remained unamended. Congress has added no such rate making concept to it. I bear in mind that it is arguable that a legislature in using the word “reasonable” in a statute passed many years ago may have intended that word to gain meaning from the accretions of time and experience, but this view can hardly have weight where, as here, the statute in question remains unamended while new concepts are expressly embodied in another rate making act.
The Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667, especially relied upon in the majority opinion for the proposition that the appellant had a right to notice and hearing is I think not in point. That portion of the opinion in that case quoted in the majority opinion herein discusses not the legal interest of the parties but their practical or “vital” interest. As I read the case the real basis of the ruling that the plaintiffs might properly challenge the order of the Interstate Commerce Commission which was involved is .that they were parties to that order and therefore had a right to be heard in the judicial proceeding under the express provisions of the Judicial Code, §§ 212, 213 (originally the Commerce Court Act, June 18, 1910, c. 309, § 5, 36 Stat. 543, 28 U.S.C. § 45a [28 U.S.C.A. § 45a]), declaring that any party to a proceeding before the Commission may, as of right, become a party to “any suit wherein is involved the validity of such order.” The case of Interstate Commerce Commission v. Chicago G. W. Ry., 209 U.S. 108, 28 S.Ct. 493, 52 L.Ed. 705, especially relied upon in the majority opinion in support of the asserted substantive right of the appellant to insist that the Secretary of War, in prescribing rates, consider their effect upon appellant’s bridge, is a case decided under section 3 of the Interstate Commerce Act (49 U.S.C.A. § 3), which section makes it unlawful for carriers to subject any particular person or locality or any particular description of traffic to undue or unreasonable prejudice or disadvantage. There is no such provision in the statute involved in the instant case.
The majority opinion, I think, reads into the statute a concept which is not there. Conceivably Congress should require the same factors to be considered in respect of bridge rates as are now by the Interstate Commerce Act required to be considered in respect of railroad rates —although it is to be borne in mind that the Interstate Commerce Commission has vast powers of a supervisory and regulatory nature over carriers which have not been given the Secretary of War and which may well warrant rate making for railroads on a basis which regards competitive conditions and effects in respect of all carriers. I refer particularly to the power of the Commission to grant and refuse certificates of convenience and necessity and thereby to forbid the building *796of unnecessary lines. But in any event what ought to be the powers of the Secretary of War over bridges and what otight to be the specific factors which it is his duty to consider in making rates for them are for Congress to determine, not for us.
I think the statute imposes no duty upon the Secretary to consider competitive effects and hence confers no substantive and therefore no adjective rights upon the appellant. This was apparently the view of the trial court, and I think its judgment should be affirmedt