The opinion
FAKE, District Judge (dissenting).
This is not the first time the passenger rates of the Hudson & Manhattan Railroad Company have been considered by this court. The company filed a local passenger tariff to become effective September 1, 1937, providing for a 10 cent fare on its downtown line. This led to protests and extended hearings resulting in the establishment of a rate of 8 cents by the Commission, two members thereof dissenting because they believed the 10 cent fare to be justified. Resort was then had to this court resulting in the sustaining of the 8 cent rate so established. The opinion of this court on the subject is found in Hudson & Manhattan Railroad Company v. United States, 33 F.Supp. 495 , affirmed, 313 U.S. 98 , 61 S.Ct. 884, 885 , 85 L.Ed. 1212 . Therefore, the issues now before us do not come without some knowledge of the prior record.
I agree with the prevailing opinion that the dispositive issues here arise on the question of arbitrary action by the Commission in refusing .to receive and consider evidence offered by the Price Administrator and the City of Jersey City on September 28, 1943. An examination of the proffered *320 evidence discloses on its face that it transcends the limitations placed on the receipt of evidence by the Commission in its reopening order of September 18, 1943.
In this connection it is found on looking back over the record that an 8 cent fare as established in 1938 has continued in actual operation down to the present time. On June 27, 1942, the Railroad Company petitioned the Commission for a further hearing and again sought authority to charge 10 cents on its downtown line. Replies were filed to this petition by the City of Jersey City and divers others, and on July 13, 1942, the Commission issued an order opening the proceedings. Commencing on September 9, 1942, and running through September 19, 1942, hearings were held bearing upon the issues involved on the petition and replies. On September 17, 1942, the Price Administrator entered an appearance on the record and reserved the right to be heard and to file a brief. His representative was then asked whether he desired to introduce any evidence and his answer was “Not at this time”. On November 13, 1942, the Commission issued an order permitting the Price Administrator to intervene. Sometime during January or February, 1943, a proposed report by the Commission was issued.
On March 8, 1943, exceptions to the proposed report were filed by the Price Administrator and also by the City of Jersey City and six other municipalities and divers bus lines. On March 18, 1943, the Railroad Company filed a reply to the exceptions. On April 20, 1943, a stipulation to supplement and bring the record up to date was filed showing the total patronage and revenues of the Railroad Company for the months of January and February, 1943, and on that date oral argument covering all the issues then pending took place before the Commission. On June 8, 1943, the Commission filed a report and order establishing a 9 cent fare on the downtown line, three of the Commissioners however maintaining the view that a flat fare of 10 cents was reasonable.
On July 8, 1943, the Railroad Company filed a petition for reconsideration and modification of the Commission’s order of June 8, 1943, on the ground that mechanical difficulties prevented its operation. On July 14, 1943, the City of Jersey City et al. filed a reply to the Railroad Company’s petition. On July 19, 1943, the Price Administrator filed a reply.
The petition of the Railroad Company last above mentioned and the replies thereto raised certain issues bearing on difficulties confronting the Railroad Company in the matter of the collection of the 9 cent fare, and the Commission found that by reason of the peculiar construction and operation of the mechanical fare-collecting devices, 9 cents, however divided, could not be received and properly counted in these devices; that other means of collecting that sum were impractical because in each instance they would result in unreasonable expense to the Railroad Company and involve serious delays in the discharge of its passengers. The evidence shows clearly that speedy discharge of passengers is of prime importance because the schedules of the connecting railroads are arranged to prevent traffic congestion. For these, and other reasons, the Commission entered its order of August 3, 1943, modifying its order of June 8, 1943, permitting a fare of one dime or the use of eleven tokens at $1 for eleven rides on both the uptown and downtown lines. This afforded the uptown passengers a fare of 9J4i^ where under the prior order of June 8, 1943, they were to pay 10 cents and would cause the downtown passengers to pay 9Vi1‡ where under the prior order they were to pay 9 cents. In this connection it seems to me the Commission functioned fully within its lawful sphere of action, and down to this point I am not able to find even the slightest question of arbitrary action. There was ample evidence before the Commission to bring their action within the rule laid down by the decision of the United States Supreme Court above cited, and in this connection it was not then and is not now within the province of this court to weigh the testimony and form a conclusion in conflict with the Commission’s findings of fact. The Commission must be sustained whenever it appears that “there was evidence to support the Commission’s findings.” Such were the words of the Supreme Court.
On September 13, 1943, the City of Jersey City filed its complaint in this court and the Price Administrator was subsequently permitted to intervene in this action.
On September 18, 1943, the Commission entered its order reopening the proceedings, limiting the same as follows: “for further hearing to permit any party hereto to present evidence directed solely to the propriety and lawfulness of the modifica *321 tions made by the Commission in its report of August 3, 1943 * * * that at such further hearing any party hereto shall have the right to cross-examine adverse witnesses, and, upon the conclusion of such hearing, any party so desiring may make oral argument before the examiner, but no further briefs shall be submitted, nor shall a proposed report be issued, nor shall there be further argument before the Commission.” All of which clearly discloses the intent of the Commission to consider all issues closed save only the one specifically referred to.
Thereafter on September 28, 1943, and of course after the institution of the suit here, the representatives of the City of Jersey City and of the Price Administrator attempted to introduce evidence bearing upon the earnings of the carrier for the first six months of the year 1943, for the purpose of showing that there was no justification for the increased fare allowed either under the order of June 8, 1943, or the order of August 3, 1943, and that the action of the Commission was inflationary. Also it was sought to cross-examine witnesses who had appeared at prior hearings and testified in relation to a $240,000 charge made by the Railroad Company for war damage reserve. It is my view that when by stipulation as hereinbefore appears, evidence was introduced bearing upon the earnings for the months of January and February, 1943, this made the evidence reasonably current and timely. However, here the Commission functioned with open eyes within their discretionary powers and this court cannot usurp their functions on the question of reasonable time as applied to the timeliness of the record. Rate making is a highly specialized art. The Commissioners had evidence on the subject before them and listened to arguments on that point and we should not substitute our judgment for their’s. Prior to June 8, 1943, the Commission had given full opportunity for the introduction of evidence and arguments were heard bearing upon the $240,000 item. As to the proffered new evidence, the Commission said in its report of November 2, 1943, “ * * * we have no reason to believe that, if the additional hearing sought were held, we would feel warranted in modifying our findings as made in the second report.”
Of course the flow of economic change never stops — always and forever the comings and goings and doings of man have their effect in preventing a static period at which time the Commission might stop and make a decision. Always the point of termination must be fixed in the midst of fluctuations in the economic factors involved. It is my view that this court should not enter the province of the Commission in considering the subject of inflation. They were charged with the duty of passing on it by reason of the Executive Order on that subject and dealing as they do from day to day with economic factors, they constantly are kept advised in that field, and I believe their action here resulted from close attention to all the factors involved including inflation.
A careful study of the record convinces me that there was ample evidence to sustain the validity of each of the rulings made by the Commission herein and I am therefore unable to concur in the prevailing opinion.