Full opinion text
WILBUR, Circuit Judge. This proceeding was instituted by the petitioners to secure the annulment of an order of the Interstate Commerce Commission fixing the cost of icing for shipments of poultry and dairy products originating in the six western states. The action of the Interstate Commerce Commission was invoked by a petition attacking such rate filed by the Pacific States Butter, Egg, Cheese & Poultry Association- June 17, 1925. After elaborate hearings and presentations by that association, by the railroads, and by other interested parties, the Interstate Commerce Commission January 22, 1929, made the order now under attack to become effective May 9, 1929. In the hearing before the Interstate Commerce Commission, the 135 railroads, the petitioner therein, and other intervening shippers, petitioners herein, and the public utility rate-regulating bodies of the states of Washington and Idaho, were represented. Some of the parties who appeared before the Interstate Commerce Commission upon the hearing now ' appear in this court as plaintiffs, defendants, or as interveners. Upon the hearing, the pleadings and evidence taken before the Interstate Commerce Commission were by stipulation received in evidence, so that the record presented for our consideration is the same that was presented to the Interstate Commerce Commission, excepting that a transcript of the oral argument was objected to by the defendants; a ruling on that objection was reserved until consideration of the entire ease. This objection will now be overruled. While the evidence is voluminous and in some respects conflicting, in the main aspects of the ease there is no controversy between the parties, and the issues presented to this court are not only narrowed by the restrictions upon the court in dealing with the findings and conclusions of the Interstate Commerce Commission to which Congress has granted the power and authority to determine the facts involved in rate making, which findings are conclusive upon the courts if based upon substantial evidence, but also by the further fact that the petitioners rely in the main upon the findings of the Interstate Commerce Commission to support the legal conclusions which they press upon the court. These considerations will make unnecessary an elaborate statement of facts or a comprehensive review of the evidence ifi this opinion. For an elaborate and comprehensive statement thereof we refer to the published opinion of the Interstate Commerce Commission in this case, 1511. C. C. 244. It appears without contradiction that in establishing their freight rates throughout the country upon perishable products requiring refrigeration, the railroads have adopted three different types of refrigerating service for which compensation is charged to the shipper. .The first type of refrigeration is what is called the “stated charge” for standard refrigeration, published in section 2 of the Perishable Protective Tariff. Broadly speaking, this involves filling the ice bunkers, or refrigerating cars, at eaeh icing station established by the carrier at suitable intervals along the railway. The second type of service rendered, published in section 4 of said tariff, is that wherein, after the initial icing, the cars are re-iced only at such points and in such quantities as may be designated by the shipper at a designated cost of ice per ton. The third type of refrigeration is where, after the initial icing, the perishable product is shipped to its destination without any re-icing, the initial ice to be furnished by the shipper, or by the carrier, on the cost per ton basis; a supercharge under rule 240 is added on long hauls. The second type of refrigeration charge, designated throughout the record as the “cost of ice” basis, is applied by all the petitioning railroads to certain perishable products in their respective tariffs. It is also applied by all of them to poultry and dairy products originating in all the forty-two states east of the sis above-mentioned western states. This method of charging for refrigeration is established by all the petitioners, including those having their termini in the six westernmost states, for all poultry and dairy products which do not originate in those six states on their own lines, as will be hereinafter more particularly pointed out. The purpose of the Pacific States Butter, Egg, Cheese & Poultry Association, as disclosed by its petition to the Interstate Commerce Commission, was to compel the railroads accepting poultry and dairy products for shipment in the six westernmost states to apply to such shipments the same method of charging for refrigeration as is applied by them and by all other railroads in all the other states of the United States; that is to say, railroads having determined in their schedules the cost of ice at their respective icing stations, it is. desired that the shipper be permitted to designate the points at wnich, and the extent to which, such icing should occur, ice to be paid for at the per ton rates thus already fixed by the railroads in their published tariffs as aforesaid. This petition was granted by the Interstate Commerce Commission in the order now under attack.' It would seem at first blush that an order establishing for the six westernmost states the same system of charging for refrigeration applied by the petitioners herein in the rest of the United States would be just and reasonable, but the attack upon this order herein is based upon the admitted fact that the railroads, in establishing the cost of the ice per ton basis, have not included in that cost all the elements making up the cost of refrigeration. In fixing that cost, there has been included in the cost of ice per ton the cost of the manufacture of the ice, of its transportation to the icing station, and the cost of switching the refrigerating ears to the icing station, and the cost of labor of placing the ice in the bunkers of the refrigerating car. See Perishable Fruit Investigation, 56 I. C. C. 449, 470. It is claimed, and the Interstate Commerce Commission finds it to be a f^et in this ease (151 I. C. C. 264, 265), that the cost of ice basis of charging for refrigeration does not inelude every element which might, could, or should be included in a proper charge for refrigeration in this, that in the cost of ice basis no addition is made to the cost of the ice per ton by reason of the expenditures involved in transporting the ice together with the refrigerated product in the refrigerating car after icing as distinguished from the cost of hauling the refrigerated product; that no charge is included in the cost of ice basis for the repair of the ice bunkers of the refrigerating car as distinguished from the cost of the repair of the other portion of the ear which might, could, or should be included in the proper segregation of the costs of refrigeration as a cost of refrigeration, and that no charge is included in the cost of ice for the expenses of supervision that might be rightly apportioned to the cost of refrigeration. The petitioners rely upon the opinion of the Interstate Commerce Commission in Re Refrigeration Charges from the South, 1511. C. C. 649, 653. The contention of the petitioners upon that subject may be briefly and concisely stated as follows: The Hepburn Act, § 2, amending Interstate Commerce Act § 6, par. 1 (49 USCA § 6, par. 1), requires the carrier to separately state certain charges, including, among others, “all * * * icing charges.” It is claimed, and is well settled by the decisions of the Supreme Court, that, where a railroad rate is under attack before the Interstate Commerce Commission or before the court, that rate must stand or fall in the test as to its reasonableness, upon the proposition that the rate under attack must itself furnish a reasonable and adequate return for tbe service rendered, and that a reasonable and adequate return .must pay the cost of that service, as distinguished from all other service, plus a reasonable profit thereon. Southern Ry. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297, 29 S. Ct. 678, 53 L. Ed. 1004; Cotting v. Godard, 183 U. S. 79, 22 S. Ct. 30, 46 L. Ed. 92; Interstate Commerce Commission v. Union Pac. R. Co., 222 U. S. 541, 32 S. Ct. 108, 56 L. Ed. 308; Interstate Commerce Commission v. Stickney, 215 U. S. 98, 30 S. Ct. 66, 54 L. Ed. 112; Northern Pac. R. Co. v. North Dakota, 236 U. S. 605, 35 S. Ct. 429, 59 L. Ed. 735, L. R. A. 1917F, 1148, Ann. Cas. 1916A, 1; Northern Pac. R. Co. v. Dept. Pub. Works, 268 U. S. 39, 45 S. Ct. 412, 69 L. Ed. 836; Chicago, M. & St. P. Ry. Co. v. Public Utilities Commission, 274 U. S. 344, 47 S. Ct. 604, 71 L. Ed. 1085. It is claimed that the Interstate Commerce Commission expressly found that the cost of icing directed by them to be applied to the products in question does not so reasonably and adequately compensate the railroad company, and that the order is therefore void. The Commission did find as a fact that the stated charge did include, and that the eost of ice basis did not include, compensation to the carrier for the eost of hauling the ice after it was placed in the bunkers, the eost of bunker repair, and the eost of supervision. The Commission did conclude, however, that the line-haul freight rate was sufficiently high to include compensation for these items. We quote from its opinion herein (151 I. C. C. pages 266, 267) in that regard as follows: “This leads to the question whether the line-haul rates upon the traffic in question are sufficiently high to provide compensation for the elements of refrigeration cost not covered by the cost-of-ice basis, so that it can be substituted without injustice to defendants. Reduced to compensation per 100 pounds of freight carried, the amount involved is not great. The cost elements in question are for supervision, bunker damage, and ice haulage. Taking defendants’ estimates at face value, these elements do not on the average aggregate more than $51 per ear per trip, and these estimates were based upon full standard refrigeration and a cost per ton-mile for haulage which is open to serious question. The $51 per car, however, is no. more than 21 cents per 100 pounds. If the $3 transcontinental rate on dairy products were reduced by that amount it would still exceed by $1,19 the transcontinental rate which we recently prescribed upon deciduous fruits from California points. It is true that dairy products have a higher value than fruits and vegetables and therefore may well be charged somewhat higher freight rates, but in the rates exhibited of record there is ample margin t.o care for both this higher value and the elements of refrigeration cost above mentioned. “The question, as we see it, is not whether the carriers have taken these elements of refrigeration cost into consideration in arriving at the freight rates, but whether those rates are in fact sufficiently high to provide compensation for such costs. If they are sufficiently high, the reasons which impelled the carriers to bring them to that level are •of little importance. In our opinion, after considering the many comparisons of record with rates on dairy products subject to the cost-of-ice basis which we have ourselves prescribed in other parts of the country and with rates on such perishable commodities as fruits and vegetables, fresh meat and packing-house products, we are convinced that in general they are sufficiently high so that the cost-of-ice basis can be established on the traffic in question without injustice to defendants. It is true that our decision in Westbound Transcontinental Refrigeration Charges [34 I. C. C. 140], supra, went only so far as to decide that the westbound transcontinental rates on dairy products included compensation for the supervision, bunker damage, and ice haulage incident to the initial icing; but it should be borne in mind that so far as.the replenishing charges approved in that case were concerned, we stated that the record was insufficient upon which to base a finding on ‘other than the reasonableness of the charges involved,’ and refused to determine the merits of the cost-of-ice basis in connection with the traffic in question. Here no such insufficiency of record exists.” The foundation of this contention is the claim that the eost incident to the refrigeration of freight must be treated as separate and distinct from the charge for the transportation of the freight which is refrigerated as distinguished from all other charges for all other service performed by the railroad company. In the ease at bar, the Interstate Commence Commission, while recognizing and expressly finding that -the icing charge set up by the railroads which they directed be applied to the products in question did not pay the above-mentioned elements properly applicable to refrigeration, nevertheless held that the freight rate upon the product itself established by the tariff was amply sufficient, not only to pay reasonable cost of transportation, but also to absorb the elements of cost in the transportation which under the rule above stated might more properly be charged to the expense of icing, that is to say, the cost of hauling the ice 'after its placement in the refrigerating cars, the cost of repairs of ice bunkers, and its supervision. It is not claimed that the total charge of the railroad company for transporting freight and for the refrigeration thereof under the rule established by the order of the Interstate Commerce Commission is unreasonable or void, but it is claimed that the Interstate Commerce Commission was precluded from consideration of the amount of the freight rate applied to such products in determining the reasonable value of icing under the rule above stated, and that, if it was desired to secure a total rate for freight and refrigeration which would reasonably compensate the carrier for the service of trans-. portation and refrigeration of the freight, the attack in question should have been centered upon the freight rate as too high rather than upon the cost of icing, which is admittedly not high enough to cover the total cost of refrigeration. This question was disposed of by the Commission in its opinion herein (151 I. C. C. pages 263, 264), as follows: “In arriving at ultimate conclusions it is necessary to consider at the outset a legal question raised by defendants. They point out that section 6 of the interstate commerce act provides that the schedules of rates, fares, and- charges which carriers are required to publish ‘shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the Commission may require, etc.’ The stated charges for refrigeration service, they say, have been published in accordance with this requirement, and they contend that if these charges are reasonable in themselves for the service rendered they can not lawfully be reduced upon a theory that the concurrently effective freight rates are sufficiently high to include the various factors of refrigeration cost other than the actual cost of preservative used. In support of this contention they rely upon Interstate Commerce Commission v. Stickney, 215 U. S. 98 [30 S. Ct. 66, 54 L. Ed. 112], and also cite National Live Stock Exchange v. A., T. & Si P. By. Co., 107 I. C. C. 512, where we approved the separate publication of a charge for bedding livestock, found it not unreasonable in itself, and refused to condemn it upon the ground that in connection with the line-haul rates, which were not attacked, it might result in unreasonable aggregate charges. “A contention quite similar to this was advanced in Perishable Freight Investigation, supra, and considered at length in [56 I. C. C-] pages 461-465 of our report. After- considering the history of section 6 and the former practice of providing refrigeration service, in many cases, through private car-line companies whose charges were not published or filed with us, we said, at page 463 [of 56 I. C. C.]: “ ‘Manifestly, the intent was merely to require, where a separate charge was in fact levied, that it be published and filed, so that it might be uniformly available and uniformly applied without discrimination. In other words, while all charges must be separately stated, the statute does not make it unlawful to seeure compensation for the protective service by regarding it as an integral part of the service of transportation.’ “We went on to show that this conclusion is not discordant with the decisions of the Supreme Court, including that cited above by defendants, and also a later ease, Atchison By. Co. v. United States, 232 U. S. 199 [34 S. Ct. 291, 58 L. Ed. 568], which bears more directly upon the issue. Our final comment, at pages 464, 465 [of 56 I. C. C.], was as follows: “ ‘In many respects protective service against heat or cold is closely intermeshed with the freight-haulage service. So close is the association that there has been no separate accounting of expense items, and the carriers in the present proceeding have been forced to depend to a substantial extent upon mere, and often rough, estimates in attempting to determine the separate cost of the protective service. It is neither strange nor unreasonable that this service should frequently have been regarded as an element of transportation, to be covered by a single rate. We do not feel that the statutory provisions in question can be given the construction which has been urged by the representatives of the Director General. Our conclusion is that it is not unlawful to seeure compensation for all or any part of the protective service through the line-haul rate on perishable freight, and that no presumption exists that compensation is not secured in this way.’ ” The contention now made by the petitioners is not new. Similar argument was offered in Perishable Freight Investigation, 56 I. C. C. 449. We quote at length from the Commission’s report in that ease (pages 463-465 [of 56 I. C. C.]): “Both from this history and from the subsequent practice, we think it evident that it was not the intent, when these provisions of law were enacted, to prohibit a carrier, if it wished to do so, from regarding the haulage of the freight and any incidental protection against heat or cold as one combined transportation service for which a single charge might lawfully be made, or from treating certain elements of the protection in this way and making a separate charge for others which could more readily be segregated from the haulage service. Manifestly, the intent was merely to require, where a separate charge was in fact levied, that it be published and filed, so that it might be uniformly available and uniformly applied without discrimination. In other words, while all charges must be separately stated, the statute does not make it unlawful to secure compensation for the protective service by regarding it as an integral part of the service of transportation. “And in our opinion this conclusion is not discordant with such decisions of the United States Supreme Court as bear upon the subject. It is true that there are expressions in Interstate Commerce Commission v. Stickney, 215 U. S. 98 [30 S. Ct. 66, 54 L. Ed. 112], which seem, when considered apart from their setting, to furnish foundation for the claim now advanced by the representatives of the Director General. We refer especially to the statement on page 105 [of 215 Ú. S., 30 S. Ct. 66]: “ ‘If the terminal charge be in and of itself just and reasonable it cannot be condemned or the carrier required to change it on the ground that it, taken with prior charges of transportation over the lines of the carrier or of connecting carriers, makes the total charge to the shipper unreasonable. That which must be corrected and condemned is not the just and reasonable terminal charge, but those prior charges which must of themselves be unreasonable in order to make the aggregate of the charge from the point of shipment to that of delivery unreasonable and unjust. In order to avail itself of the benefit of this rule the carrier must separately state its terminal or other special charge complained of, for if many matters are lumped in a single charge it is impossible for either shipper or commission to determine how much of the lump charge is for the terminal or special services. * * * ’ “But this statement must be viewed in the light of the circumstances which were then before the court. As we said of this ease in Associated Jobbers of Los Angeles v. A., T. & S. F. Ry. Co., 18 I. C. C. 310, the opinion ‘holds that a carrier is justified in charging a reasonable rate for a delivery which it can not make upon its own line, and that this rate, when separately stated, must be judged as to its reasonableness by itself.’ Quoting again from the opinion on page 109 [of 215 U. S., 30 S. Ct. 66]: “ ‘If any shipper is wronged by the aggregate charge from the plaee of shipment to the Union Stock Yards it would seem necessarily to follow that the wrong was done in the prior charges for transportation, and, as we have already stated, should be corrected by proper proceedings against the companies guilty of that wrong, otherwise injustice will be done. If this charge, reasonable in itself, be reduced the Union Stock Yards Company will suffer loss while the real wrongdoers will escape.’ “The essential governing principle is that one carrier may not be made to suffer for the shortcomings of another. “In the present instance, the railroads are solely and directly responsible for the protective service, even when performed through the agency of a car-line company, and the question of justice or injustice to a separate entity does not enter in. Moreover, the present issue has been more specifically considered in a later case, Atchison Railway Co. v. United States, 232 U. S. 199 [34 S. Ct. 291, 58 L. Ed. 568]. There a charge which we had prescribed for refrigeration service upon precooled shipments of citrus fruit from California was before the court, a charge which did not cover the cost of hauling the necessary ice, since we held that compensation therefor was included in the line-haul revenue. Upon the authority of Interstate Commerce Commission v. Stickney, supra, the carriers contended that the receipt of a fair return for carrying 33,000 pounds of fruit afforded no reason for compelling them to haul 5,000 pounds of ice 2,000 miles for nothing. Stating that ‘it is evident that the Commission did not intend to require the carriers to haul 5>000 pounds of ice without reasonable compensation, but considered that the haul of the ice was so much a part of the haul of the precooled freight, that the expense could properly be treated as included or absorbed in the rate on the fruit itself,’ the court went on to say (pages 220, 221 [of 232 U. S., 34 S. Ct. 291]): “ ‘What is a proper rate on fruit in precooling shipments, or a fair charge for hauling necessary ice or rendering other transportation services are all rate-making matters committed to the Commission. It may determine what shall be the difference in rate between carload and less than carload lots. It may decide whether the difference in revenue, due to a difference in method of loading, warrants a difference in the rate on carload shipments of the same article. It may prescribe the form in which schedules shall be prepared and arranged (see. 6) and may approve tariffs stating that the single rate includes both the line haul and accessorial services absorbed in the rate. Conversely, it may prescribe a tariff fixing a through rate which includes not only the haul of the fruit, but the haul of the ice necessary to keep the fruit in condition. All these are matters committed to the decision of the' administrative body, which, in each instance, is required to fix reasonable rates and establish reasonable practices.’ “In many respects protective service against heat' or cold is closely interméshed with the freight-haulage service. So close is the association that there has been no separate accounting of expense items, and the carriers in the present proceeding.have been, forced to depend to a substantial extent upon mere, and often rough, estimates in attempting to determine the separate cost of the protective service. It is neither strange nor unreasonable that this service should frequently have been regarded as an element of transportation, to be covered by a single rate. We do not feel that the statutory provisions in question can be given the construction which has been urged by the representatives of the Director General. Our conclusion is that it is not unlawful to secure compensation for all or any part of the protective service through the line-haul rate on perishable freight, and that no presumption exists that compensation is not secured in this way.” Inasmuch as the contention of the petitioners is based upon their interpretation of the Hepburn Act with reference to the setting up of “charges” for “icing,” the correctness of this interpretation will first be considered. Assuming for the moment that Congress intended that a separate eharge for icing should be set up by the railroads, we are to determine what is meant by the word “icing” in connection with transportation. The word is not a technical expression having a technical meaning, but is one of general use. In the Century Dictionary in current use at the time of the adoption of the Hep-bum Act in 1906, it is defined as “to apply ice; refrigerate; preserve in ice, as meat.” In the Standard Dictionary of 1913 it is defined “to freeze or chill with or as with ice; cover with ice; enclose or preserve in ice; refrigerate.” • Certainly, in the ordinary acceptation of the term as applied to the application of ice to products transported in refrigerating cars, the eharge for placing the ice in the bunkers of the refrigerating ear is a eharge for icing. It would not occur to the layman, we think, that in fixing a charge for icing it was necessary or even proper to include in that eharge the transportation of the ice with the product after the icing was completed. Certainly it requires a stretch of the ordinary meaning of language to say that the cost of hauling ice after it is placed in the refrigerating ear to chill the contents of the car is a cost of icing. Throughout the case the petitioners have referred to the cost of icing, or the eharge for icing, as the equivalent of a charge for refrigeration. The two words are not synonymous. Apparently the word “icing,” properly construed, may or may not include refrigeration. The petitioners themselves have recognized this fact in the charges that they have established in connection with the refrigeration of perishable products. In the charge for standard refrigeration or “stated eharge” icing, they have uniformly included the cost of hauling the ice after the ears have been iced, while in the eharge for icing on the “cost of ice” basis they have not included the cost of hauling the ice in the ear after it has been placed therein for purposes of refrigeration. In considering the effect of this conduct on the part of the railroads, it has to be borne in mind that the primary duty is placed upon them of fixing freight charges and of establishing and promulgating “icing charges.” In asking the court to hold that a proper icing eharge necessarily includes the cost of hauling the ice after it is placed in the ear for purposes of refrigeration, the petitioners are asking the court to hold that they have consistently violated the act of Congress for more than a quarter of a century by ignoring the duty which they now claim is upon them and upon the Interstate Commerce Commission and upon the court to establish icing charges which would include every element of the cost of refrigeration. It might be seriously questioned whether petitioners are in position to invoke the jurisdiction of .a court of equity under the circumstances. The question is, Do they come into a court of equity with clean hands when they claim that the Interstate Commerce Commission is violating the law by doing the very thing that the petitioners have done for twenty-five years, and which they are still-doing in violation of law? In this connection it may be observed that the Interstate Commerce Commission did not set up a new scheme for determining “icing charges,” but merely permitted the shippers to take advantage of rates already established by the railroads for comparable, or for the same, products. We will not, however, base our determinajfcion in that regard upon the principle of equity we have suggested, but consider the conduct of the railroads contemporaneous with, and immediately, subsequent to, the passage of the act, as interpretative of its meaning. In this interpretation the Interstate Commerce Commission has consistently acquiesced, if not directly participated, so that we have the parties to this litigation concurring over a long period of years in the interpretation of the statute which both now ask us to interpret, the respondent in accordance with the constant practice and the petitioners in conflict with that practice. Aside from all other considerations than the proper interpretation of the word “icing” in the law, we would he inclined to hold that the standard or “stated charge” for refrigeration, which it is admitted includes the cost of ice haulage after icing, and the charge for ieing on “cost of ice basis,” are both permissible so far as the act of Congress requiring a separation of all ieing charges is concerned, but there are other and even more persuasive reasons for this conclusion. The purpose of Congress in the enactment of section 6 of the Interstate Commerce Act, as amended by Hepburn Act, § 2, is obviously to provide for a system of tariff schedules, rates, fares, and charges which would be uniform and consistent and apply without discrimination or favoritism to all shippers similarly situated. It is obviously intended thereby that the total charge to be paid by the shipper should be clearly ascertainable from the tariff schedules, so that one shipper should not have imposed on him auxiliary charges which might not be imposed upon others. United States v. Chicago & A. Ry. Co. (D. C.) 148 F. 646; Chicago & A. Ry. Co. v. United States, 212 U. S. 563, 29 S. Ct. 689, 53 L. Ed. 653; United States v. Hanley (D. C.) 71 F. 672; United States v. 111. Term. R. Co. (D. C.) 168 F. 546; Standard Oil Co. of N. Y. v. United States (C. C. A.) 179 F. 614; Louisville & N. R. Co. v. Dickerson (C. C. A.) 191 F. 705; Cleveland, C. C. & St. L. R. Co. v. Hirsch (C. C. A.) 204 F. 849. This is in accord with the uniform holding of the Interstate Commerce Commission. Rice v. L. & N. R. Co., 1 I. C. C. 503; In re Tariffs of Transcontinental Lines, 2 I. C. C. 324; American Warehousemen’s Ass’n v. Illinois Cent. R. Co., 7 I. C. C. 556; H. B. Pitts & Son v. St. L. & S. F. R. Co., 10 I. C. C. 684; Cosmopolitan Shipping Co. v. Hamburg-American Packet Co., 13 I. C. C. 266; Voorhees v. Atlantic Coast Line R. Co., 16 I. C. C. 42; Schultz-Hansen Co. v. So. Pac. Co., 18 I. C. C. 234. It is certainly clear from the statute that there is no intention of setting up a system of bookkeeping for common carriers, for this function was, by the same act, delegated, so far as was necessary for the purpose of supervising interstate commerce carriers, to the Interstate Commerce Commission (49 USCA § 20, particularly subdivision 5). It is obvious that the immediate concern of the shipper is with the total charge to him for transporting his freight safely and in good condition from the shipping point to the point of delivery. It is entirely immaterial to the shipper whether the extra cost due to the increased weight of ice carried for refrigeration is carried by the railroad company as a part of the rate of the line freight haul or as a part of the cost of refrigeration, and the same is true of all other itemization in connection with the making of the rate or the system of accounting required of or permitted by the Interstate Commerce Commission. These details of rate making and rate fixing were undoubtedly intended by Congress to be delegated to-, and determined by, the Interstate Commerce Commission where its powers were invoked, and the courts have not only consistently recognized their inability to properly fix rates, but also have exercised supervision thereover only as required to protect the fundamental rights of the carrier, and of the puhlie. These views in reference to the purpose of section 6 of the Interstate Commerce Act, as amended by Hep-bum Act, § 2, have been consistently adhered to by the Interstate Commerce Commission, and we think rightly so. (See above quotation from its opinion in this ease.) The petitioners have not attempted to justify their interpretation of section 6 with reference to what Congress intended by the words “all * * * icing charges,” hut, as we have said, have assumed that ieing charges are synonymous with refrigerating charges, and have assumed that the only proper way that such charges can be separately stated is by including therein all the costs of refrigera^ tion, whereas it seems apparent that' Congress merely intended to require that such charges as the railroad company set up as icing charges should be stated separately and published as such. These considerations thus far advanced lead us to the conclusion that Congress did not require, and did not intend to require, that the icing eharge made by the railroad company should of necessity include every element in the cost of refrigeration which could be properly assigned by competent experts and accountants to the cost of refrigeration, but only to require that, when a eharge was made therefor in addition to the line-haul freight rate, such eharge should be published in the tariff schedules of the carrier. If this conclusion is correct, the action of the Interstate Commerce Commission in requiring the carrier to conform to its own icing charges as applied to other perishable commodities is not incorrect, because the icing charge per se does not include elements of cost which expert bookkeepers might determine and have determined to be a part of the refrigerating cost. As has been stated, the petitioners do not alone devote themselves to a question of the proper interpretation of section 6 of the Interstate Commerce Act, as amended by section 2 of the Hepburn Act, supra, as a basis for their claims, but rely upon certain decisions of the Supreme Court which they hold are applicable to the situation herein. In the first place, relianee is placed upon the admitted rule of constitutional law developed by the Supreme Court to the effect that, in proceedings before the Interstate Commerce Commission, or other regulatory bodies throughout the United States involving rates charged for service, in determining a reasonable amount thereof such regulatory bodies must fix a charge commensurate with the service rendered. Second, it is claimed that the Supreme Court of the United States in the Stickney Case, 215 U. S. 98, 30 S. Ct. 66, 69, 54 L. Ed. 112, has expressly held in the case of “terminal charges,” which are also required by the same section of the Hepburn Act (section 6, par. 1, 49 USCA, supra) to be separately stated, that the Interstate Commerce Commission could not require the diminution or abandonment of that rate where it expressly found that the rate in and of itself was reasonable, notwithstanding the fact that the Commission found as a fact that the line-haul freight rate was sufficient to include such terminal charge. In view of the fact that the petitioners mainly base their case on this decision of the Supreme Court, we will consider it more in detail. The question there involved had been a matter of contention over a period of many years. The Interstate Commerce Commission found that the railroads entering Chicago had established a separate railroad corporation for the transportation of live stock from the railroads in question to the Chicago stockyards. The stock of this Belt Line Railroad was owned by the various railroads transporting live stock to Chicago.. It is found as a fact by the Interstate Commerce Commission that the cost Of delivery of freight in Chicago by the common carriers was $5.40 per ear. It was therefore concluded by the Commission that, inasmuch as the line-haul freight rate necessarily included these terminal expenses amounting to $5.40, where the railroad company was spared that expense by reason of delivering its ears loaded with live stock to the terminal road, it could not properly eharge an additional $2 terminal charge where it had already charged a line-haul freight rate more than double that amount for the same service. In passing upon this contention, the Supreme Court declared immaterial the fact that the Belt Line Railway was owned by the common carriers whose roads were in question. It therefore held that to eliminate or reduce terminal charge for the use of the Belt Line Railway would be to reduce a eharge found to be reasonable for such service while at the same time allowing them to charge a line-haul freight rate which under the circumstances the Interstate Commerce Commission had virtually held to be unreasonable; that is, the Commission fixed a eharge unreasonably low to compensate for one it found to be unreasonably high. The court, therefore, held that, notwithstanding it might be true, as found by the Interstate Commerce -Commission, that it cost the railroad company twice as much to deliver the stock at its own terminal for terminal charges as it did to deliver the stock over the Belt Line Railway, the action of the Interstate Commerce Commission was erroneous and void. It is clear, however, that in reaching this conclusion the court was largely influenced by the consideration that ihe terminal charge collected by the carrier was for service rendered by an independent carrier, and that for such service so rendered by such independent carrier the charge actually made was reasonable. In order to make this more clear, we quote from the decision as follows: “Under those circumstances it seems impossible to avoid the conclusion that, considered of and by itself, tbe terminal charge of $2 a ear was reasonable. If any shipper is wronged by the aggregate charge from the place of shipment to the Union Stock Yards, it would seem necessarily to follow that the wrong was done in the prior charges for transportation, and, as we have already stated, should be corrected by proper proceedings against the companies guilty of that wrong, otherwise injustice will be done. If this charge, reasonable in itself, be reduced, the Union Stoek Yards Company will suffer loss while the real wrongdoers will escape. It may be that it is more convenient for the Commission to strike at the terminal charge, but the convenience of Commission or court is not the measure of justice.” The more general language of the opinion relied upon by the petitioners and quoted from page 105 of 215 U. S., 30 S. Ct. 66, 67, must be construed in the light of the conclusion above stated. This excerpt is as follows: “By section 15, the Commission is authorized and required, upon a complaint, to inquire and determine what would be a just and reasonable rate or rates, charge or charges. This, of course, includes all charges, and the carrier is entitled to have a finding that any particular charge is unreasonable and unjust before it is required to change such charge. Bor services that it may render or procure to be rendered off its own line, or outside the mere matter of transportation over its line, it may charge and receive compensation. Southern Railway Co. v. St. Louis Hay Co., 214 U. S. 297, 29 S. Ct. 678, 53 L. Ed. 1004. If the terminal charge be, in and of itself, just and reasonable, it cannot be condemned or the carrier required to change it on the ground that it, taken with prior charges of transportation over the lines of the carrier or of connecting carriers, makes the total charge to the shipper unreasonable. That which must be corrected and condemned is not the just and reasonable terminal charge, but thosé prior charges which must of themselves be unreasonable in order to make the aggregate of the charge from the point of shipment to that of delivery unreasonable and unjust. In order to avail itself of the benefit of this rule, the carrier must separately state its terminal or other special charge complained of; for, if many matters are lumped in a single charge, it is impossible for either shipper or Commission to determine how much of the lump charge is for the terminal or special services. The carrier is under no obligations to charge for terminal services. Business interests may justify it in waiving any such charge, and it will be considered to have waived it unless it makes plain to both shipper and Commission that it is insisting upon it.” It must be conceded that this portion of the opinion, taken alone, and without recognizing that the court was there dealing with a charge made for services performed by another carrier, strongly supports the contention advanced by petitioners in this case. But the petitioners are seeking to apply the reasoning in that ease to a situation entirely different and distinct therefrom, as may be indicated by a situation more nearly analogous to the ease at bar. Suppose that the receivers of the Great, Western Railroad in that case had been delivering live stoek to the Union Stock Yards in Chicago over its own lines for the established line haul freight rate; that thereafter, in pursuance of the Hepburn Act, it had set up a separate terminal charge of $5.40 for the delivery of freight at the stoek yards; that this new and additional rate was attacked by the shippers on the ground that it was unreasonable, not because it was an excessive amount for a terminal charge, but because the line-haul freight rate theretofore established had absorbed that charge, and that the shipper paid therefor when it paid the line-haul freight rate, would the Supreme Court under these circumstances say to the shipper, “You have made your attack upon a reasonable terminal rate and you should have made it upon the line haul freight rate?” We think not. The consideration which moved the court to treat the terminal charge in the Stiekney Case as one which could not be reduced where reasonable could not be applicable to this new charge by the same carrier for the same service which he had theretofore rendered for the compensation theretofore paid in the long-haul freight rate. The above-quoted language carries with it a clue to the proper decision of this question. It is apparent that the decision is not based upon the mandatory requirement that terminal charges be separately stated, for it is said: “In order to avail itself of the benefit of this rule, the carrier must separately state its terminal or other special charge complained of; for, if many matters are lumped in a single charge, it is .impossible for either shipper or commission to determine how much of the lump charge is for the terminal or special services. The carrier is under no obligations to charge for terminal services. Business interests may justify it in waiving any such charge, and it will be considered to have waived it unless it makes plain to both shipper and Commission that it is insisting upon it.” In view of this language, it is fairly apparent that the answer to the carrier under such circumstances would be this: “You have, by including in your line haul freight rate, the expenses of terminal delivery, waived a separate charge therefor, and you cannot now set up a separate and additional charge therefor, because to do so would be unreasonable in view of the fact that you have already been compensated for that service in the line haul freight rate.” See Los Angeles Switching Case, 234 U. S. 294, 34 S. Ct. 814, 58 L. Ed. 1319. We are not, however, left to mere inference from the general language of the opinion in the Stiekney Case, but subsequent decisions clarify the situation. In the case of the Atchison, T. & S. F. R, Co. v. U. S., 232 U. S. 199, 34 S. Ct. 291, 296, 58 L. Ed. 568, the Supreme Court had under consideration a ruling of the Interstate Commerce Commission with reference to the charges for transportation of oranges in carload lots, and was dealing primarily with the difficulties arising from a new; system of refrigeration involving a pre-cooling of the fruit. Two systems of pre-cooling were used, that inaugurated by the common carrier of placing the entire ear with its contents in a refrigerating plant and cooling the fruit while in the car by blowing chilled air through the ventilators of the car into the space containing the packed fruit. This system required ample space between the packed boxes for the circulation of cool air. The packers had inaugurated a system of pre-cooling by which the packed boxes of oranges were cooled to a temperature of 33° Eahrenheit in the refrigerating plant of the packing house. These boxes were then packed solidly in the ear without any space for ventilation between the boxes. In view of the temperature of the oranges, the circulation of air would tend to raise rather than decrease the initial temperature of the fruit, the car itself was cooled by the air of the refrigerating plant of the packing house circulating during the process of loading the car, and also by the oranges themselves. In addition, the car was iced at the packing plant in order that the temperature might not be increased during the process of transporting the ear from the packing house to the main line of the railway or to the icing or cooling plant of the railroad company. The significant thing, from the standpoint of rate making about the cooling system inaugurated by the packers as distinguished from that inaugurated by the earners, was that a greater weight of oranges could be packed in the same refrigerating ear where ventilating spaces were not left, and consequently the pay load of the car was increased. Thus the revenue provided by the railroad company from the line-haul freight rate was increased from 27,200 pounds to 33,000 pounds. This freight rate, $1.15 per 100 pounds, had been fixed by the Interstate Commerce Commission preliminarily in a hearing involving both the line-haul freight rate charge and the refrigerating charge. The refrigerating charge, however, was postponed, and, upon the final determination of that matter, was reduced on pre-cooled oranges from $30 to $7.50 per car. The carriers contended that this $7.50 did not pay the actual cost of transporting the ice placed in the bunkers of the refrigerating ear. It was conceded that the reasonable cost of transporting that ice was $5 more than the total amount allowed by the Interstate Commerce Commission as an icing charge for hauling pre-cooled fruit. The situation may best be stated in the language of the Supreme Court: “6. The appellants insist, however, that even if the shippers are entitled to furnish the ice, the carriers are entitled to pay for hauling it. They claim that the charge of $7.-50 is confiscatory because it does not cover what the Commission found to be the actual cost of the carriers’ pre-cooling, service. They point to the fact that the rate of $1.15 per ewt. on oranges was found to be reasonable, without regard to the character of the shipment, and whether the fruit moved under ventilation, standard refrigeration, or precooling shipment, — additional sums being allowed for furnishing or hauling ice needed in transportation of the fruit. They admit that more revenue is derived from a carload of pre-cooled fruit, weighing 33,000 lbs., than from a car where the load weighs 27,200, but insist that the greater revenue is because of a greater service rendered and a greater weight hauled. On the authority of Interstate Commerce Commission v. Stickney, 215 U. S. 98, 105, 30 S. Ct. 66, 54 L. Ed. 112, 113, they contend that the receipt of a fair return for carrying 33,000 lbs. of fruit affords no reason for compelling them to haul 5,000 lbs. of ice 2,000 miles for nothing, when, as found by the Commission, the actual cost of the haul is $12.50. “The order does not show the items going to make up the $7.50 charge. In the brief for the Commission it was said to include $5 for damage to the bunkers and $2.50 for profit. And since the report shows that the carriers were also entitled, to $12.50 for hauling the ice, a charge of only $7.50 for a $20 service would at first blush appear to be not only unreasonable, but confiscatory. But the order is to be read in connection with the report of which it forms a part. When so read, it is evident that the Commission did not intend to require the carriers to haul 5,000 lbs. of iee without reasonable compensation, but considered that the haul of the iee was so much a part of the haul of the pre-eooled freight, that the expense could properly be treated as included or absorbed in the rate on the fruit itself. Cf. Farrar Lumber Co. v. N., C. & St. L. R. Co., 25 I. C. C. 25; Swift v. M. P. Ry. Co., 22 I. C. C. 385. “The cost of such haul was $12.50,— equivalent to 3.8 on the 33,000 lbs. of oranges in a pre-eooled shipment, and as a mere matter of figures, it was immaterial to the carriers whether they were permitted to charge $1.11.2 on the fruit and $12.50 for the ice, or $1.15 on the fruit alone without any distinct charge for transporting the ice. In either event, the revenue received was more than that derived from a car of standard refrigeration, without corresponding increase of cost. “7. The claim that the order modifies the established rate of $1.15, and reduces it to $1.11.2 in pre-eooled shipments, thereby discriminating against the small fruit grower and those who forward under ventilation, or under the carriers’ method of refrigeration, is not an issue presented by any assignment of error in this record, even if the carriers were in position to make such a contention. Int. Com. Comm. v. Chicago, R. I. & P. Ry., 218 U. S. 88, 109, 30 S. Ct. 651, 54 L. Ed. 946, 957. There is no claim in this ease that such rate, thus distributed, is unreasonable. “8. What is a proper rate on fruit in precooling shipments, or a fair charge for hauling necessary iee or rendering other transportation services, are all rate-making matters committed to the Commission. It may determine what shall be the difference in rate between carload and less than carload lots; it may decide whether the difference in revenue, due to a difference in method of loading, warrants a difference in the rate on carload shipments of the same article. It may prescribe the form in whieh schedules shall be prepared and arranged (§6), and may approve tariffs stating that the single rate includes both the line haul and accessorial services absorbed in the rate. Conversely, it may prescribe a tariff fixing a through rate which includes not only the haul of the fruit, but the haul of the ice necessary to keep the fruit in condition. All these are matters committed to the decision of the administrative body, whieh, in each instance, is required to fix reasonable rates and establish reasonable practices. The courts have not been vested with any such power. They cannot make rates. They cannot interfere with rates fixed or practices established by the Commission unless it is made plainly to appear that those ordered are void. Int. Com. Comm. v. Union Pac. R. R., 222 U. S. 541, 547, 32 S. Ct. 108, 56 L. Ed. 308, 311. No sueh showing is made in this case. The decree must therefore be affirmed.” This case holds it proper under the circumstances stated therein to consider the line-haul freight rate in determining the reasonableness of the icing charge or refrigerating charge incidental to the transportation of the perishable freight, and that an icing charge whieh ignored admitted elements of the refrigerating charge might be established by the Commission as a reasonable charge for icing or refrigeration, notwithstanding the fact that in doing so the line-haul freight rate must be looked to to augment the icing charge in order to compensate the carrier for the cost of refrigeration. The situation in that ease was unique, in that the very system of pre-cooling under consideration increased ’the carrying capacity of the individual ear involved, and added to the car revenue of that particular ear without commensurate increase of cost. The case is direct authority for the proposition already advanced in this opinion that all the refrigeration charges need not be stated separately from the line-haul freight rate, but it is far from a holding that in all eases a line-haul freight rate that applies to the product, whether refrigerated or not, can be looked to in eking out a refrigeration charge whieh in and of itself is not compensatory. At the very least, then, the decision necessarily implies a holding that there is no legislative mandate binding upon the railroad and upon the Interstate Commerce Commission to incorporate into the icing or refrigerating charge every element which expert and proper bookkeeping might assign to the cost of refrigeration. This we think manifest from the excerpt of the opinion above quoted, and particularly from the phrase therein, “ * * * it was immaterial to the carriers whether they were permitted to charge $1.11.2 on the fruit and $12.50 for the iee, or $1.15 on the fruit alone without any distinct charge for transporting the ice.” It also will he observed that in the Atchison, T. & S. F. R. Co. v. U. S., supra, the court was dealing with a freight rate and an icing charge both fixed by the Interstate Commerce Commission as a result of a continuing investigation and not by the carrier, whereas in the case at bar the freight rate and the icing charge were each fixed by the carrier, and the Interstate Commerce Commission has merely required the carrier to extend to this type of perishable freight the same facilities at the same rate which are already charged by the carrier for service for comparable perishable freight, and in effect said to the carrier, “You have established what you consider reasonable rates for the transportation of certain classes of perishable freight comparable to the poultry and dairy products, and we have required you to modify your rules so as to extend to this character of freight the same privileges accorded to similar perishable freight, and also extended by you upon this particular class of freight in all sections of the country other than the six western states.” The rather obvious anomaly of the petitioners contending that an icing charge established by them is unreasonable because in the establishment thereof they ignored a requirement of the law, as they contend, that such eharge should include elements which they have excluded and the contention that the Interstate Commerce Commission could not adopt the system which they themselves had adopted in establishing such rates, is met by the petitioners’ claim that the icing charges established by them were voluntarily established, and for that reason were permissible, but that, when the Interstate Commerce Commission seeks to force them to accept an inadequate rate, as they claim it to be, it cannot do so without increasing the icing eharge to cover expenditures which they themselves had excluded in that charge in applying it to the same perishable freight in other portions of the United States. This argument is based upon the implied assumption that the carrier may disregard the express requirements of the law in establishing such charges, but that the Interstate Commerce Commission is rigidly bound by the saíne provisions of law which they have disregarded. We can see no merit in this contention. The requirements of section 6 of the Interstate Commerce Act, as amended by section 2 of the Hepburn Act, with reference to separate statement of icing charges, is binding upon the carrier in the establishment of its rates in the first instance. The function of the Interstate Commerce Commission in this regard is to determine whether the rates of a carrier are reasonable. 'Having selected a system of rates under which the line-haul freight rate must necessarily take care of certain elements of the cost of transportation, they are hardly in a position to now contend that these line-haul freight rates do not cover the cost which they themselves have assigned to it for compensation. We believe that the icing charge set up by the railroad company on the cost of ice basis was a proper eharge under the law, and that the Interstate Commerce Commission, in determining the reasonableness of this eharge, had a right to consider the elements of cost which the carriers themselves had assigned to this eharge and to ignore other items which the railroads had assigned to the line-haul freight rate. In this statement we do not wish to be understood as holding ihat the icing eharge specified in section 6 of the Interstate Commerce Act, as amended by section 2 of the Hepburn Act necessarily includes the entire cost of refrigeration. As we have said, it may or may not. While the general nature of the eharge is indicated by the statute, the details of accounting with reference thereto are left to be determined by the carrier in the first instance, in the absence of rules and regulations of the Interstate Commerce Commission, and in the second instance by the Interstate Commerce Commission as the question arises from time to time. It is our view, therefore, that neither section 6 of the Interstate Commerce Act, as amended by section 2 of the Hepburn Act, nor the decision of the Supreme Court interpretative thereof, or those dealing with' the subject-matter, necessarily require that, in the establishment or alteration of rates, the icing charges therein set up must necessarily include all items of refrigerating cost, nor that in considering such an incidental cost the Interstate Commerce Commission is necessarily inhibited from considering the rate to Which the eharge is ancillary. We arrived at this conclusion by a consideration of the language of the law itself and by an analysis of the decisions relied upon as establishing the rule contended for by the petitioners. There is, however, an even more persuasive consideration against the adoption of the interpretation of section 6 of the Interstate Commerce Act, as amended by section 2 of the .Hepburn Act contended for by the petitioners. To attribute to Congress, in the enactment of section 6 of the Interstate Commerce Act, as amended by section 2 of the Hepburn Act, an intention to establish a system of accounting so rigid that any failure to apply to each tariff charge every element of cost and profit which in strict and scientific accounting could reasonably be assigned to that charge, would not only completely ignore the fundamental purpose of Congress in the adoption of section 6, that of advising the shipper of the amount he must pay for the transportation of his freight, but would incorporate into the system of rate making a rigidity entirely inconsistent with the powers conferred upon the Interstate Commerce Commission, and would thus introduce into the system rules which would make difficult, if not impossible, the ascertainment of the proper charges to be assigned to the main line freight rate and to each ancillary charge. Instead of clearing a channel for reasonably intelligent rate making, such construction would introduce artificial obstructions in a channel already sufficiently difficult and tortuous. The ease at bar illustrates the point in question. It is and must be a matter of opinion as to what portion of the general expense of the common carrier in connection with the moving of perishable freight shall