# Reply Brief for the Petitioner — Transcontinental & Western Air, Inc. v. Civil Aeronautics Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0127%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief for the Petitioner - **Published:** January 1, 1949 - **Citation:** 336 U.S. 601 ## Text _ Josern S. Isemax, | Supreme Court of the United States ~ Ocroser Term 1948 ° - No. 387. ose TRANSCONTINENTAL & WESTERN AIR, INC, ' Petitioner, . against | CIVIL AERONAUTICS BOARD, | Respondent. 7 - , & ‘ ‘ oe a Pe ey On Wait or CERTIORARI TO THE UNITED States Court - OF APPEALS FOR THE District or CoLuMBIA - _> REPLY BRIEF FOR THE PETITIONER _ Pr - fe. : — | Gerad B. Bropuy, Attorney for. Petitioner. a Carters Pickett, | of Counsel. ets INDEX : ~PAGE I. The ‘imambiguous language of section 406. ve ; ee ae 2- Of The we od “rates” eee ee ee | 6 Serge er ope Be Be Le Oe arr oye Eee wortr. : eas v -C. Other phrases,in §406............. ere AE a ene ea 1). The comrast between the “make effective” claffe and the : Act's provisions relating to public utility rates ....... rae Il. The false analogy to public utility rate statutes ... ATE fas 16 A. The language of the WR Races tec: eee B. ‘The legislative ee, AEE Tees CTR ee ee aceon III. The “legislative history” of the “make effective” clause... 26 A. The obligation to carry the mails ......... eee eee | B. The broad disagreement as to the Commission's retro- . spective power to-fix mail rates ............... rere 31 C. The “legislative history” after the 1937 hearings ...... 34 -IV. The Board's previous rulings ............ pi heans ace V. The Board’s policy arguments 1.0... 06.60.cecscesehasee 37 A. The “waste: of.time” argument ...... TET COTE Pee ee | B. The “finality” argument ’......... aS eererete s anaes! ae C. The guaranteed profit argument ...........5...45. ae DD "Fee Pebe Pemeciaes SOE 3 a ooo ike sd dcwa ances 46 E. The uniform rate argument .......... a cahe See aes hen ak -F.. The Constitutional UE oo chs Sac nees eee Or yg +48 eee b cere PES ee ERT een TOR TO r ET NOE 55 eas bic oa ears oie ce re ee wen 3 a . ; ; mi ify | ; PAGE ’, Eastern Rd. Co vo United States, i29 U. >. 31, 32 L.. Ed. 730, , wS, Ct. seo revewida wa eeeees eee en's ghucaGqaaaae 4,10 . es Ine, Temporary M: ail Rate ’ \. B. 687 1, 13, 5% be saneville X ‘Indian ayn hs Ra. Qo. y re nited States. Hc. Se; ss berkew se Oren eee e fb ees Pree Te cr Tee eye ee Ek 5 ° Federal Power Ce “Mt \ i. yerXa tural Gas Co, 320-8, 591 ss L. ] dl. > wd - 89 wal an ; a i a > Fecvral Powg? ¢ omit *¢. Natural Gus “Pipeline . ly.the case of the railnpad. there has ae meh int of: subsidy in cotnection with mail’ payments. Sabo ouaittee Hearimtys, po 45. At, the hearings, Com- - avssioner Dastman developed the point-further. See supra, note 39, and rire, note We . : ; : ' 7 Tiss clears appears from the testimony of Commissioner -East- man, quoted in truncaietl form in Res. Br. p.. 34. After the ‘state- mient quoted ‘supra, rote 39, he said that “tm the substitu te [re., the 34 PST tall | oveuw aalb mote there is contimual emypdiisis upon Trans: pertatton ef the mak” and ' ‘provisions adieating that rates must he | po fixed t! it the warriers can «periate’ sues cessfully ths rates for’. Carrymig passengers and property ther t! 2. ah" as Aoprac, Heal. matter, be fied ata level winedr wall extable them to do their sharé-in producme these re sits, then the Wurden guest. st wil he tit 1 fall ua 4 PEE mm es Seer) tuo Hears 1: 75... He widded: “Po am net.so sure. that that as-te be regarded as a subsidy”: mony «ean be offered as remotely indicating that a limited +] meanina should: in seiven to the ‘make effectivy: clause, Which had hot evel been pape at the: time. . m4. OF cours esas the Board argues (Res, “— +» Pp. 36-37), . i ‘ongwress cod lave disve warded the historical differentia tion hetweei iad pay sad justine its and. public utility rate changes, ignored the practical reasons underlying that dif- ference, and tossed-into the discard gener itions of. experi- ence in the fixing of mail compensation for the past as well as the future. P resumably, howéver,.in a mai! pay: provision Congress acted with regard to*the conditions peculiar to mail pay and its past: ex ‘perience with that field. Presumably it did not draw a false analogy to the alien field of.publie utility rates. . There’ is no need, however, to rely on presumptions. Apt language to assimilate completely the fixing of mail Ihid:; Then he proc ceded. to- develop this point by an analogy. “It is a good deak like the situation with respect to the railroads. There “the most important part of the’service is the freight service, and . the railroads .*. .. have jrequently. argued to. the-Commissien that» it is impossible for them to get a fair-return’on the passenger busi- “ness, and, therefore the freight must carry that load, if they are ‘to yet the fAir return; in other words, that the deficit from passenger service must be fastened on the freight service. To some extent the ° ~€ommission has accepted that argument.. I. say ‘to some extent’ hecause in the case of the carriage of livestock, for example, it found that it Wa et an appropriate place to put that burden, and that the ratfroads should: find, some ae place to carry that burden, other thai the carriage of fivestock. The situation 7 nich the same ‘ e . iO hy : . am here Of course 4) Govetiment wants the mail to be carned effi-, cenithy and well7 Ef av should be the situation that for competitive snd ther reasins the passenger part of the business cannot be made to pay dis wav, then mo tollaws that the compames cannot operate success folly aa a dinarecral Waly un less they Kary nough trom carrvings the. tail te cower the deticieréy on pi assengers.” thd. > PR To- 76. : Le ‘a, - ; “ ’ ; \ 7y i ap ®B . ~~ ff es 26 pay tu public utiliiy rate doctrines Jay at hand in thi » Very statute, (Coneress could have chosen the saline ~tund ards for fixing mail pay as for den aiuing public utility rates. It‘did not. It could have provided that mail rates, like pubic utiliiy rates, shomld be changed only prospee tively. Tt did not, Oy the contrary, it used in.‘ 406 (a) Ob), unique language vastly different from Hise of public utility — rite statutes’ That language caimnot ‘be emasculated by appealing toa false analogy which Congress did not follow when draWine this.very Act. paint 7 i. ‘The “Legislative History” of the *Make Effective” Clause. ; s The | Jourd te les to pare down 406(a) (1) by invoking its “ legislative luistory. ‘Phere is, however, 0. ambiguity in “this Act ti be ciwritied = resort to legislative history.’ Pac ie or Car CoN. National Labor Relations Board, 3300U'. S. 485, 402 gn ar gument, moreover, is fruitless. What the legislative history shows. is that tlie “public utility’ netion that mail pay rates should be changed only . prospectively was vigorously advanced and rejected de- cisively, lu-ftead Congress wrote into the Act a broad erant of power with cut any arbitrary limitftions. A. The Obligation to eis the Mails. Claiming that the 19 7 hi Ils (and the Act) iniposed no obligation oe the Board: persists in its basie . weniee that the ttdisagreement in the Commission” over I's power under the Air Mail ; Vet= to fix rates back’ to the. Hates the ‘procetding was hegnu “would have heen pet petaated bad the isczchitls Deen enacted into law wishes the mel tition of the “inigke fective’ clause’ (Res. Br., p- GS). -Itoadn nite at Commissiouer Mahaftie predicated his _ dissenting vie W Wh ois on the argument that under the. Air Maid Acts airline- were not required by Taw to carry the mail. (Res. Br. p. 6a). 2 The Board’. clair i unsound, It is entirely imuna- ‘terial whether an air line cab legally operate withou earry- ing mail.) The problem ‘whether “air Tnail rates ‘can be fixed retrospectively or not can never arise with an airline lacking authority fo carry mail, Yor it may not carry mail. at all. No wirline thay carry mail unless, ~pecitically. au-, thorized to do so by certificate. “ ” 3 The 193% ill provided, in $$05¢g): “No certificate shall be issued, and ne arr carnmer stiall hold, or operate under, any certificate, except upon conditian that the carrier shall undertake to provide, under suche rules and saints net imconsistent with the provi- sions Of this part as tie Postmaster General. may prescribe, neces- sary’ and adequate facilities and: service for the transportation of, and .te transport, mail, whenever so authorized by such certificate and so required hy the Postmaster General; and such carrier sha ‘be entitled te receave Compensation therefor aschereimafter provided, .Subcommuttees Hearings, p. 3. Perhaps it might be inferentially implied from gla, i)" which. referred to a certificate including “authority ‘to transport’ such ‘classes of traffic, except mail, as, fay be ap jiroved by the“Commtission,” that an-airline might be issued a ceytificate authori ving it to operate although not obliging it to carry mail. “For the corresponding provisions of the original 19°7" bill, ye J {oni . : see Subcomimetce Hearuigs, p. 4. ‘ ; ro ; a3 The 1937 bill provided, in’ $303ea): “No air carrier shall en- gage an inter stale, overseas, Or foreign air transportation OF 11 any transportation ot mail by aire raft, unless there’ is’ in force a4 cer- tificate issued hy the Commission authorizing such carrier so- to engage,’ S Jxoutittce He artnas, Pp. ‘92. Th corsésponding pro, visio of the Vets aed ai, 49. U.S.C. §481ia): “No air carrier shall oie anv air Transpertanien ails ss there is in fofece a certificate issued by the Qo ar authorizing such ai Carre: to envage ‘ - * or osmeh transportation Lt the: Act “arr transportation” mean. “interstate. Sovetseas or Yorelgn gtr transportation or the ‘Transpor- urcrait.” $1110), 49 U, S.C S401; VW) tation ol mia . - 2 While Such a certificate is in existence, ‘the airlihe has. yé choice about carving mail. ** Whenever so authorized he ots cortilicate, ay air carrier shall provide neceseary anid -aileqiat jacilities and services for the transportation of-mati!, anal dell transport mail whenever pequirgd by the i’ pstiniinter Cieneral, Such aie carrjer ‘shall byes entitled te receive: reasonable compensation therefor as hereinafter provided Tf it violates that duty, it is liable to a heavy fine for each day of the violation.”® Once a certificate is iestied, if cannot be voluntarily abandoned.” After. an trie ae upie~ the status of a wail’ carrier, thereforey it is compelled te carry mail, That the status ‘was nut forced on it originally ix beside the point. No- Denly eit be lewally foreed inte the status of marriage, but aman Who marries is vompelled to support his wife Whether Section 40Lem) at the’ Act. 49 S.C, Stslim). The cor- responding rowisigns of the 1957 Tall. are set vtt)supra, note 42. “Air carriers transporting er handing Unity4 States mail shall submit, under oath, when apd®in such form as rnvaty he re quired by the ‘Postmaster Gencral, evidence of the performance -of mail serv- we, SM pad LOS. CC. St8o 09). For corresponding provisions, see S301¢f) of the origirial 1937 bil, Sdbcommittee Hearings, p. tle and Oech) ob the ames ded 103% tall. aval. }. 29. “s s "For a first oflensc, the fine can be SAv0; ior ‘each subsequent ! Hense, S000, “TP such wielafion is a continume one, each, day of : - a” mu o .: . welr violation shall comsritute ‘a separate offense,” S02 (a) of the Vet, Po US. CL 8622 04a0.. For the pegal provisions of §3516)a) : . N) 1 of the 157 balls: see Subcon mittee, Hearings, pp. 13-14, 21.°. -, ®eecton diteky oi the Act. 49 UL-S. C. Ststck), provides ; "NO air carrey hall “bandon. any route, er part thereof. for whick bcort ile | ae doby the Board, unless, apen the applica-* thet aol sin hoa rt ey atte fothee ands Is ariay, the Hoard shall find such abanjemiy jeche in che public mterest.” pinularly, a riit 3 nmgte reveled’ pn ot der ‘willuk’ velanen: of law, Mei hood i “@ "ea tod. bh.) . Phe.2ost bills eoitained no express : rovistens reheat tig to wandorment of @ Gortific ite. i ee he wants to or not. Moreover, tfiider ‘401(n) of the Act, onee ar airline aceep its at certificate permitting it to carry only pissengers or cargo or both, but net mail, it subjects itself to the oblig ation of carrying mail if the Board sub- aia finds that it is‘in the public interest.” _ ’ No one had ang doubt that ander the 1937 bill, an air- line authorized to earry mail .would-be compelled to act as a mail carrier, Mr. Gorrell made that clear.“ He even took the position that the airlines’ duty to carry mail was broader than that of the railroads? aaa « Under Section 401(n), upon ‘certification by the “Postmaster General that new air n ail service is needed, the. Board has. the power to provide tor it by issying a new certificate “or by. amending an existing certilic ate or certificates in ‘accordance with the provisions of this section.’ ‘This section” [$401(h) )/provides that the Board, on its*own initiative, may amend any ceftificate if the public cons venience and nycessity so require. Consequently -once an_ airline accepts any kind of .a certificate it immediately subjects itseif to the obligation of carrying the mail if the Board Wishes to require it, whether its original certificate provided for it or not. 28*Thus, when a carrier is authorized in his. certificate to carry mail, he. assumes an absolute obligation to transport that mail as and when directed by the Postmaster General, and under -rules and regulations made by the Postmaster General.” Subcommittee Hear- ings, p. 436. “Since the obligation placed upon the carriers by section 305.4) to furnish ‘adequate and necessary mail service is one of the obligations imposed hy the act... . the crirhinal penalties for viola- tims of the act gre hkewise applicable.” Jbid., p. 463. # On the other hand, with respect to the mail service, section BOA Cg) says specitic: ally that the carrier must transport the mail ‘whenever 20. °. requ red by the Postmaster General.’ Tt also’ pro- vides that adeqyiate service. must be given under the. Postmaster General's ruleand re; gulations. This is a power much greater than that shi hohe. POssesses with, respect to the railroads. As to them it ts provided merely that a railroad: company must transport, mail when required “bé the Po stmaster General on any. train or trains it yperates” That is taken from 3o U. S.C; Ak. section 439." Subcommittee Hearings’ p. 442. eae ’ \ eyes eit ‘4 ja = — Thus, even without the ‘make effective, clause,’’ the WT bill co ple tely cut the ground from under Commis- ~ioner Ma alias -enting argument, The point on which he disayfecd with the C omission could have arisen only _ when Am airline was dawfully earrying mail. Under the 1937 bill, every such airline w as placed under a penal, statutory duty te-carry mail. ; j Not even Commissioner Mahaffie could have made tine arguments against al] retrospective adjustments of mail pay — anced in his dissent in Air Mad Compensation, 216 I. C. C..166, 192° -No longer could the have sontianed to argue that ‘carriage of the mail by railroads is required by law. Refusal-is punishable by a fine,”’ whereas ‘‘air mail is carrigd by contractors. The air line is under no. compulsion to. become a contractor. It niay, on 60 days’ notice, terminate its contract, and. end its undertaking to ‘arry niail.”’ ‘The 1937-bill abolished the whole system of | “a voluntary contractual relationship. It substituted a compulsory, bon-ter minable status relationship enforceable by vriminat penaities. The Board's basic premise is com- pletely unsound,” It is unnecessary to explore the Board's attempt (Res. Br., ‘Dp. 64) to show that the 193% bills did not ‘climinate the “minutiae of ex- pression... that Show Congress to -have been thinking of the future” carried éver vito the Ai ir Mail Act-from the Railway Mail Pay Act. They are apparent from a’comparison of the statutes (Por Broepp. E51, S61). Indeed, reenactment of the: statute . without chayGe would lave been an acceffance by Congréss of the ConmiussiZ) «Settle construction “whéch had been so clearly brought te its atteytion’ United Stales v. Zacove, S354 U.S. 602, 623; cf. Feanéis v. Southern Pac fic Co... 3338 U.S: 445, 449-450. | 6 k 3l ey ae | | _B. The Broad Disagreement. as to the Commission's Retro- spective Power to Fix Mail Rates. — ° ean J 1. The Board thinks: that under the Air Mail ‘Acts the only disagree ‘ment in the Commission’ was over ‘“‘the nar- | row. question of whether’ the Commission had authority to... fix mail rates back to the date vf the petition or whether it was restricted to making such rates effective from the date of issuance of an order’? (Res. Br., pp. 69-70). .There are two errors in this position. eG oes | . First; the Board does. not cite a single case to support its intimation that, under the Air Mail Acts, the Commi-- sion held.or said that it could go back only to,the date of the petition. Actually it went back even further.® Second, in all thé,cases where the Commission did fix rates back of the date of the petition, ‘Commissioner Ma- _haffie dissented. He predicated his first dissent on the broad ground that the Commission had’ ‘‘no authority in — = . - - ee = ri : _-° 5! The Board dismisses certain decisions reviewed in Pet. Br., -p. 58, note 72, on two grounds. First, the retrospective “action was oe by the Postm: ister General and not the Commission” (Res. Br., . Oe notc4iOa, The mechanics of° the retrospective adjustment ie immaterial. The important thing is that under the statute the .Commission had power to issue ‘orderseAvhich were made effective far back of the start of the proceeding. ‘Had, the. Postmaster General: - doubted the Commission's authority to make such orders, he would have refused to pay thereon, as inthe New York Central case. Sec-— ond, it. suggests, that the action was “appare ntly based on, Section 6(¢) of the Air’ Mail Act of 1934,-as amended.” Nothing in. that section required that compensation under-a revised Commission-fixed rate’ be adjusted. retrospectively as far back as‘March 1, 1935 (cf. Pet. Br. p. 5%, note 71), and.the action taken. shows a liberal in- seshuesiiion of the section standing in sharp contrast to the Board’s present narrow view of $406(a)(1). 4 Fs ar y, ° 7 - the act for making the increases retroactive,’? and con tinned that position throughout. In other words, ‘he took the view that the Commission should fix rates only for the future, just as under .public utility-rate statutes®* = * 2.. The Board’ concedes that disagreement was voiced. by. ** witnesses and legislators “aad during the 1937 hearings over the broad principle ‘whether the Commission had any power to fix rates retrospectively, not over the narrow quéstion here involved (Res. Br., pp. 70-71). It suggests * that the argument somchow ‘‘became narrowed’’ and then Mr. Gorrell ** resolved the issue.’’ The fact is that all * Air Mail Coipensation, 216 1. C. GC. 166, 191. “By construc- tron, the majority impért into the statute a power contrary, in my opinion, lo tts express terms.” ‘[bid., p. 192. *8 The discussion (Res. Br... pp. 68-69, pote 62) of sir Mail Rates for Route’ No. 33, 2161. -C. C. 381, ignores the very first sentence of the dissent: “As [pointed out in my separate expres- ‘sion in Air Mail Rocket No, 1, decided June 6, 1936 [he., Air Mail. . Compensation, 216 b. C. C..166, 191, supra, note 52] 1 find nothing in the law under which. we operate that authorizes us to prescribe coi pensation retroactively” ps - 103). Perhaps Commissioner Ma- - haftie Was Wrong in not agreeing with the Board thar the 1935 Act “specifically conterred power to fix rates back to March 1, 1935,” , but that is what he th ought. The discussion ‘of. the dissent in Air Mail Compensation, 222 1. C. C. 602, 610, puts words into Com- ‘missioner Mahafiie’ s mouth. He did .not refer at all- “to the date’ a petition was filed” (Res. Br., p. 69, note'62).° “The chief ques- tion here is:whether, under: the terms of the act, we are. authorized retroactively to change rates of compensation previously determined by us.andpart by the Postmaster General, For the reasons stated » -in my separate expression in 216 1c. C. 166,191, I am unable’to. agree that we hiivg that power” (italics the Commissioner's). Nor is there any reason to suppose that, because he did tiot dis¢uss the - icrits of the change effected. by the retrospective addition, of ‘the - proviso, he ignored that-phase of the majority's Holding. "In dir Maw Compensation, 216 1. C. C. 166, 192, he. relied on a case dealing with public utility rate changes. : : 33 / he did was to concentrate, for ,tactical yeasons, on that one ‘spect of the “general problem of retroaciivity””. on which he. had a decision of this ‘Court to support him, whereas on other phases he could*rely only on the generat = reasoning which he also advanced (Pet. Br., p. 70, note 104). No person can unilaterally ‘‘resolve’’ a broad ques- tion previously raised by others. -None of Mr. Gorrell’s ‘adversaries receded from or ‘‘narrowed’’ their broad posi- tion. After he finished testifying, the debate remained, as ' before, one cver' the general principle of prospective vs. retrospective rate-fixing. 3 So, too, the Board , simply wrong in saying that Mr. _Gorrell “expressed an intention to grant the Commission authority to make its mail orders effective as of the date mail rate proceeding was initiated, dnd nothing more’ tes. Br., pp. 61-62). Neither he nor anyone else at these hearings ever said that the Commission had or should have only such limited power. _He expressly referred to author- ity to fix “‘appropriately’’. the effective date-of its rate decisions. For all that. appears, he had, in mind the fact that, since the -1937 bill omitted the ‘specific provision whereby rates were fixed.retrosptctively, to Mareh 1, 1935, " aspast, date which Congress had ‘deemed appropriate, it © would be desirable to replace it with a. general provision ‘preserving like broad power to go back retrospectively to” a past date which the Commission determined to be ap- - propriate. 7 - If Mr. Gorrell had half ‘the keen powers of discrimina- tion with which the Board credits him, it must have been obvious to him that the power ‘‘to make such rates efec- tive from such date as it shall determine to be ‘proper’? was palpably broader than the limited intention. now foisted on’ p> ee oe hat it says. ~ 34 + “Shim. He did set idee to add, “this bestia ‘ge! means just * But the point is not worth further diseus- sions It is. a Sovel theory. indeed that the broad, clear hanguaige of ‘a statute can be Vitlited by acr ibing to Con- gress in 1938 a narrow “intention” derived i in turn by i im- ° puting it, bya process of. divination anid speculation, to a. _ | private: witness who testified in 1937,0n a bill which-never “even came to a vote. - eee » c. - The “Legislative History” After the 1937 Hearings. : The Board says ‘that Mr. Gorrell ‘“is the only perso. “who ever explained or even epmmenter deon the ‘niake effee- ‘tive! clause during the entire legislative consideration of the | Act?® (Res. ‘By.,: Ds 62). _Notietheless’ it struggles to make it appear: that its ‘interpretation of what he meant bra un ofticiaf accolade, sub silentio, in 1937.~ To do this, ‘ tears out of context utter generalities caving nophiig to do witli the ! ‘make effecdive e’’ clause (Res. Br., p. Mm. ™ fhen-the Board makes the fanciful argument that all of Mr. Gorrell’s testimony was ‘‘ineorperated by refer- ence”? t during the 1938 hearings (Res. Br., p. 63). While 2 - would not nlfike ahy difference if the fact were as stated,« “ne ‘Nally alk he said in 19: 8 was that ‘he: would not cover, the’ “points COV ‘ered the prev ious year—which: comprised over : . ia, 200 pages ef varied comments. There is nothing to show that any member of “Cougiess ever referred in. 1938 to the 1937 Gorre It testimony.” In short, ‘the Conference Report «Pet. Br., p. 45) Nis the only expression by Congress on Nev er before. did the Board dias that it had thé power to fix rates back of the date of the proceeding. Even if ‘it had never exercised that power, its inaction. would not, _show*that the powe r Was non- existent.* Actually, however, it has invoKed that power repeatedly (Pet. Br., pp. 85-98). That the Board did not say forthrightly that it was is immaterfal. Actions sjweak louder than words. Power is not wielded any the : ; e eae ee oY : . sz less Hecause its éxercise is*¢loaked by using magic words like pemparaty, _ gn [ as ; ‘ ; ‘ y .- > a ‘Authority .actually granted by Congress of cours ‘cannot -. evaporate through lack of administrative exercise.’ "Federal Trade Ota v. Bunte Brothers, Ine., 812 Le. 32 .@ : United States American Union Piomank. Inc., 327 U.S SS note, a a8. Cf The Mail Divisor Cases, 251 U.S, 326, 332- "? This wag-the abracad: ire cides in Alaska Airlines, Inc., or ‘*provisional,’** or «+ §8tem,’”* or . ; Fs ° Fes No. E-Lds5 (-\ug. 13, 1948), mentioned in Ret. Br. p. 8G, note ” There the Buard held it had power to go years back of the filing date rof the petition to supe rsede a inate rate which had been in effect all ae. 7 > ‘ a8 In Racific Alaska Air ways, he. ct ul, Alaska Mail Ratés, 6 “CC. AL B. 61. the Board found that since the airline hag received “excess carmings” on its other routes “which greatly exceeded the Aq by resorting to polite fictions in *treopening’’ proecedings and issuing ‘‘amended”’ or ‘*revised*’ orders, or deeming: a petition filpd ‘nue pro func’? a-date earlier than’its actual filing. be, ae th ck, @. . In ‘406 (a) (1) the Act confers. ¢ on the Board, in plain | 10 aglish, ample power to reach direetly all the results which it now feels obliged to justify by fictions and charmed words. When one looks to whet it has actually done, it is perfectly: manifest that it has repeatedly exercised that power. ‘It is hardly surprising that, — after this pro- "a requirements .of the Alaska division,, _ respondent had no ‘need’ for which if may be*Paid additional gempensation’?’ (p. 67). Nonethe- less, becayse it decided not to Setfates for the new Alaska operations on va “system” basis, it he at “we cannot refrain from fixing the minimum compensafry rate in this proceeding on the gtdund that such.earnings exist elsewhere” (p. 68). When the Board wishes to fix rates on a “system” basis, however, it feels at liberty to give the airline nothing for c&rrying mail on the new ‘route, when it thinks it has earned too ‘much mail pay on the old routes. Sée Pet. Br., p- 4. etme ; 3° The Board stfuggles (Res. Bri, pp. 78-79) to explain away its 1942 meinoranda (digcussed in -Pet. Br., pp. 87-88). Pre- sumably. it pre ferred not toc tion to its * policy” because it thought that, if it did so, airlines might misinte rpret’ its action as encouragement to apply fuy retrospective relief on baseless. grounds. No matter*why it favored indirection, however, the fact ‘remains that ‘the Board invited airlines to file pe- titions asking for. relief which it now says it could not lawfully grant. he present “fair play” argument is. irrglevant to the question : o of power.’, “It is beyond ‘the judicial power to distort facts or to disregard legislative intent in ceder to provide equitable relief in a parheiilar” situation.” Poehm vy. Commissioner of Internal Revenue, . 326 U. S. 287,. 295... Administrative power 1s hardly greater than — judicial power. Moreover, the Boar d's arguments have no- possible application to eee liv Lines Transport Corp., Mail Rat» Pro- cecding, 3 C. A, B. 289 (discussed in Pet. Br., p. 89), where the same mwtc pro or device Was” employed, The ‘Board igngres that decision. - a en, y bluntly that it was makitig an excep- Oe ‘ ceeding was begun the Bosrd's own Publie Counsel flatly ’ stated ‘the Board lias t le pawer & fix a rate to be effective prior to the date of the ins stitution ofa mail rate oneal Ping ed ing’? (see: Pet. Br.,-p. 24); gel YV. The Banta 6 Policy Arguments! The Board's baie! is heaped with policy arguments de- signede, to show that Congress should not have given it ~the broad power to make mail Spay rates “effective from »such date as it shall determine to be proper’? after hearing all the facts. ‘But in construing a definite procedural provision we do well to.stick close to.the text and not im- port argumenti ath qualifications trom broad, ‘unexpressed - : claims of poiicy.”” Utah Junk Co. v. Porter, 328 U.S. 39, 44. Fundamentally the Board’s guarrel is with the policy expressed in ‘406(a)(1y. “Butt is a policy adopted by Congress, and ‘our responsibility is to interpret the Act, not to overrule the Gongressional policy.’? Hilton, v.. Sulli- van, 334 U.S. 323, 339. The policy arguments are, more- over, untenable as well as irrelevant. y _ A. ‘The “Waste of Time” Argument. . * The Board asserts ‘that, unless the. ‘‘make effective’ clause is whittled down’as it proposes, the whole ‘“rate- rhod : making erdebed am would be completely eliminatell’”” (Res. Br. p.. 39). ° A contrary view, it protests,” would “‘render meaningless the work of the Board in this field for the past ten veprs”’ (Res. Br. + p. 17), for the Board “hardly “would expend timre, effort, and money to fix future rates’ ‘if the Act Aauited it ‘*to replace all such deter- minations [t¢., its future rate propheci es} with the results taken from iudits after the facts became known’? (Res. Br., p. 82). Indeed, the ‘rate- necking proc ess would lose : ‘all significance ’’* (Res. Br. + p 85). ayes ‘- . ‘nderlying this rhetoric are several glaring fallacies. ; e : Nae | 1, All the Board’s mail pay rate predictions need re- vision. sooner or later. When they are revised, neceés- : sarily the Board’ looks to the results of past operations.” ‘But it does not merely replace one rate propheey with another, as a public utility rate-fixing body must do because of practical exigencies. Tor the choice is not, as the Board contends, between Jeaping from prophecy to prophecy and gee abandoning gi entire effort to fix future'rates as a waste . of time. ‘There is a middle ground betwee those,two ex~ , | trenies , and the Board oce upies it right now. When a mail rate prophecy is superseded, it if not ‘‘re- placed’? merely for the futnre. « ‘oncededly the L urd re- ‘places it for the past as well, by a ret rospective adjustment ae of mail pay for the period baek to the start of the proceed- ing. its determination is, of .course, based on. ‘‘the re- sults taken from audits after the facets became known, ”? ~ . Yet ‘the’ rate-making process does not ‘zo up. in snioke, or become a waste of ‘‘time, effort, and money.”’ In short, the dilemma propounded by the Board is false. Rather the | issue is whether, when superse ding a prophecy as of a past date, the Board’s hands are tied s6- that it is . . limited to going back to the day. when the. proceeding | -starts, or whether it.is free to go back to the ‘time when . * ° ~ . , © wo t ln fixing a rate for the future; however, we must necessarily . consider the results undgr existify rates during the.past, and whether there be a deticicticy, a just profit, or an excess profit, we look at the results for guidance in redétermining the rate.” : Braniff. Airways, 2 ’ © Jne—Mail Rates for Rettes Nos. ¥, 15 and 50,3 C. A. B. 633, 636. aa -. the rate actually became unreasonable. The -Board’s rhe- e a e ee ° - toric only obscures’ that issue. > 2 i the Board's prophecies were always as wide of the. ditrkeas the’rate inv olved, here (Bet. br., p. 12, note 4}, ; Jit would. be enunently sensible to abafidon the entire effort : ae set. future rates. But there are excellent reasons why it is not a waste of time and money to fix rates for the ‘future. _ eA tal eS +e Se | Airlines need mail pay to keep operatang. ‘ They are | paid by the Postmaster General, and his only authority for making payment appears in §406(a) (3), which provides that ‘‘the rates so fixed and determined shall be paid by ’ the Postmaster: General from appropriations for ae portation of mail by aircraft.’’* | * Hence *‘under the Civil Acronianties Act, t the Post Office ‘Department cannot pay for mail service rendered. by* an air earrigr except upon an order of the Board fixing and deter mining ‘a rate of maibcompe nsatiori. r2 66 Ty the ab- * sence of any mail pay the cost of the mail service necessarily | dissipates the respondent’s available working capital.’’® Manifestly it would not be a waste of the Board’s “time, effort, and money,’’ thérefore, to fix a future mail rate, if: ‘the ‘‘make effective’’ clause ij taken, at its face value. 6149 U.S. C. $186(a), quoted in Pet. Br., p. “BO. This is the only gene ‘ral mi: andate to the Postmaster, General. 62 Rissaie Inc., Temporary Maid Rate, 6 C. A..B. 687. 689... See also American Overseas Atrlines, Inc., Mail Rate, 7 C: A. BY 623, 625, and the cases cited infra, note 63.. | 68 Transcontinental. > Western Air, Inc., Transatlantic Mail - “Rates T COAX. BL ART AR, Pan American Airways,.dne., Transpacific Il Rate, 7 C. A. B. 645, 619, Mail Ka de B ol} 1, . : . - ‘ * ae ( Only by fixing such a rate could the airline get the mail pay currently needed to cnable-it to perform the service : which is to. » fulfill the’ Act's objectives. ‘ : ‘But the errors in the Bo: wd’ s argument go far deeper. ‘lf we “make effective’’ clause is given its plain’ meaning, the ‘Board would not have to ** jeplace all Such determina- >) “with the results taken ‘acts became known"? (Res. " Bn, p.°82).- It would. have to do-that only if its propheties were inv ariably wrong—in whi tions’? -(2.¢., its. rate “propheci from audits made after the 1-event it certainly would ‘ ‘be absurd ‘to spend ‘much time formulating them. So long as a rate prediction, remained Within the broad ‘‘zone of 9? res asvnableness, it would need no repli wement. Hence there would be real-point in making il careful effort to fix av ¢ fair_future rate, instead of pieking a figure out of thin air. ° 4. Another variant ef the Board’s argument is that. - (lie Board’s future t rates would become “merely tentative’ or ‘‘tentative determinations” (Res. Br., pp. 41, 49). But the Board ‘does not deny hat it has _power to. set. {*tem- , porary’’ rates for any and all airlines. Indeed, in 1942 it proposed precisely that procedure for the e1itire industry.™ It did not think then that the ‘‘rate-making process’? would 99 thereby lose ‘tall signific ‘ance.”’ Nor does it lose its ‘*sig- nific: ince’ or er ‘*mes iningless*? How, when many rates a 64 Ly its.1942 memoranduni, yueted im Pet. Br., p. 99, it proposed that “all. rates effective-on and after the date -of the change-over to the new service pattern, should be tenaporary in character, and should be subject to review and adjustment as to such pertod as experience may show the necesstjv for aul yrastare nt after a reasonable period of time.” ¢ : iy are Se y goose 8 and revised retrospectively for “many years SA or Sean al rom it ‘Doli \ standpoint, a system of ' purely “‘tenta- tive’? rates would be prete ‘rable in this industry to one of Ne sacrosanct “tinal?” future rates, if choice had to. be. made oe between sthose two extremes. Actually ap such choice is "required. Once agai the Board is posing a fictitiots di- ~ , ‘lemma: © aa | Peis ees ; | : ae “temporary?” rate reflects a. quick, tentative Se ‘mate. No one- has to prove that it should be revised. It _shows on its face that revision is’ expected... Even when - évents reveal, when it is un.tor revision, that it came within "the ‘*Zoné of reasonableness,"’ it is entitled to no weight. Since it was a purely provisional guess, it. has no real pro- bative significance. -Tience the ‘“temporary”’ rate need not ‘ . -be .aecorded any: “respect, and the definitive rate may be placed anywhere within the zone of reagonableness that the Board determines proper. : When a definitive rate is set, however, the -Board * —anary iret qtite differently, It need-not-treatit-as-casualty ‘as a tentatiye estimate. It may, for example, accord it a_ pkesumption of fairness. It may impose on an -unduly 65 The “temporary” rate fixed on.October 18, 1946, in Trans- continental & Western . dir, Inc., Transatlantic Mail Rate, %:C. A. B. 421. retrospectively as of February 5 , 1946, provided that the pro- * ceeding would remain. open until the “Board fixed “a, final rate re- troactive to February 5, 1946, which said final rate may be higher . or lower than the temporary rate fixed herein” ¢p. 426},—Fhree———— . years have gone ‘by and no “final rate” has Keen. fixed. Admit- tedly when the Board comes to fix that “fin al rate” it will have to examute ali TW N's revenues from all its routes back to February 4, 1946 (Re—Br., !) . note 6S). Yet it maintains ‘that it is limited to examination, as p ding the rates on the ‘domestic routes are — concerned, and 1s powerless to adjust those rates in aceordance with o* ‘the results of its examination. e& to ~~ r dilatory. petitioner the burden of proving the rate’s un- C6 fairness. > zone & reasonableness, it may dew ‘litre to revise it, retfospee- tively. Indeed, it may exercise its discretion that way even If the facts show that. the rate was githin the. though, if it were: fixing the rate for the first time; it would ’ choose a different figure | within that zone, Thus it simply is not. true that the Board’s predictions mast be regarded as Infallibly correct, up to the start of-a new: pr oceeding, or else ‘become conipletely meaningless or ') merely ‘tentative’ estimates. The time when.a rate be- comes-unfair does not depend on the accident whether a- _rate progeediny is pending when it ceases to be fair. If that time falls while ’ a proceeding is pending, admittedly the Board has power to adjust the rate back. to the date when. it getually became ‘unfair. Congress decided that the Board should have equal power ta make the same adjiust- ‘ment, as of the same date, whether er not a proceeding ee ‘? chanced jo be pending then. The ‘‘make effective’? clause confers precisely that power. ea B. The “F inality” Argument. 2 aE ‘The Board says that its concededly retrospective rate adjustments ‘‘do not ‘destroy he finality of previous orders,’ cover enly the limited cae wie to determine a new ey — : In Alaska Airlines, Inc., Order No. E-1885 (Aug. §3, 1948), Ly the Board held at had power: to fix a rate higher, than that provided in a contraet-4#td make the inerease ettective back to Td; anuary 1, 1945, althotigh the otthion was not filed suntil September 4, 1945. “But ° it. was not “unnindful of the narep _ the carrier waited such a long time to tile its pe ition” and had nat “expressedyits dissatis- ‘factron” sooner. Necordnighy.at held that, "the ¢% irmier must shoulder the burden of -coming torward with proot of the in adequacy of the Compensation 0 as heen mecery ny te the thoe of its hhng. a pett- mo? agd that “ad e Board ab owall s ristinite meticulvusly the evidence with respect to th rt aed ole to the filing of the’ petition.” ¢ » ° rate, and are normally accompanied by’* a future rate (Res. Br., p. 15) . Tf the ttmake effective’ tigesati construsd ac cording > - to its terms, the retrospective rate will “normally? ’ be. accompanied by a future yr ate. The: Board’s refe ‘rence to the ‘limited time nec essary to -determitie a new rate’’ can hardly have been, ‘intended seriously Its retros' ective., adjustuients often are made fer two or three‘ years, and” even longer. Moreov er, as already seen, the Boar¢ always lod&s to the experience ‘of the past. The sole « whether it is confined to looking at that part of the past which precedes thie filing date or whether ‘it may also act © estion i. ad on it in appropriate cases. : ee . Fad As for the ‘*finality”’ point, little need be added to our previous a Br., ip. 74-77)."" Whenever the ‘s Board, supersedes a ‘vite retrospectively, it destroxs its ‘finality’? for the past pro tanto. Whether it is wiling to ‘face tlre fac. or not, it. does ibe aeniew SB sg perim ree > — —— ————— ~ * ** The Board makes-no effort.to support the feetitione. presump- tion against “retroactivity” ‘rylied on below, but: suggests that the Court was “simply drawing an analogy between the uncertainty cre- ated by” a retroactive statute “and the uricertainty creatéd by~ TWA’s interpretation of ‘this statute” (Res. Br., p. 41, note 30).: The. Gourt drew no: such an logy, and none exists. Interpreting $406¢ayeL) cor rectly cates tio “uncertainty.” In this field, future rates necessarily are extremely uncertain guesses. Had: Had: Congress _ anak wished to conter on em a “fictitious infalibitity- it Tt would have’ irozenthettr-tor7 timmted time, like railway mail pay rates. °Cer- tainly it would’ net have used .the broad language of the “make - effective” clause. The Board's “protective petition” discussion (Res. Br... pp. - WO-93) complet ely musses the point. Whether such petitions have “destre 'y Ms “hnality oh ‘ ? heen, should be or wall be filed frequently has nothing to do with the —Fndisputable fact that the Act permits them to be filed, showing | ‘ that no “tinahtw’ is accomled to future rates. Moreover, the Board ignores the tact that hycteruang a rate “temporary.” it can always q. e 44 Z te hew rates on rates prev iously and finally fixed”? (Res. Rr., -: p. 85). “Doubtless public utility rates have a kind of “final: ity,’ in the sense ‘that they are not changed Tetrospectiv ely (Res. Br., ps84). That is not because there ts some virtue ‘in inflexibility, but because of the necessity resulting from 2 ‘ ‘ ‘ P sot MB ° a* the exigencies of the situation, which simply do not exist in the case of mail pay (Pet. Br., pp. 33-36). Recognizing that fact, this Act does not accord any such ‘‘finality’’ to air mail rates. | i en io C: The Guaranteed Profit. Argument. Ostensibly to illustrate a policy argument, ‘the Ried suggests that’ its 1945 rate erighen, formulated on. Fasy guesses Of revenue, was very generous; the implication is that it did not prove unreasonably low, although the peti- - ‘tion allegés the® contrary. It insinuates that since TWA did not appeak it aceepted ‘the. theory of regulation which “those ‘Fates embodied” (Res. Br. » Pp. 39), although there. Was not the. slightest intimation in its 1945 opinion of the Board’s present pos'tion, and TWA could not have ques? - tioned a non-existent gratuitous dictum to that effect by taking an. appeal. It implies that TWA should have sought - relief earlier, although its 1945: opinion itself shows that. WA was adjured not to complain even. though ‘‘on the basis of repor ted results for selected short periods the rate inay appear either unduly high or unduly low’? (Res. Br., . p. 6). “Tt says that TWA is really asking that. the ‘*ground should onee again be teas — Br., PR a8. 39), and Os Cy Macon, Dublia & Sanna Rd. C. d, er nited’ States, ‘38 C. C1. 251 ¢ et. Br., pp. 9192); dlaska Airlines, Inc.. Order’ No. F-tsss ¢ Aug. 15, 1948). supro, note 66; and the pew route cases mm which the Porat [ granted retrespectivé rehed hack of The INStitAwON - of the preceedings, although the airlines could. readily: have filed petitions long before (Res. Br.. pp. 85- 86). Dae aia ? " “ ai \ ‘the: : , 5 et 4g’: ;* “oy , ne ® . : a | ¥ really secks"* a guaranteed profit, or 9 guararty against losses, ou all its-past operations (Res. Br., pp. 19, 40, 44fo x hes eal issue. ° The sole question here is Whether, if the Board hoteciatnas, after yan examination of the facts whtich developed after the rate, prophecy was ‘made, that the ciiabai turned out to Be false, it has power to adjust the, rate in the ight of actualities to provide “* reasonable com. pensation.. © eee gle If Congress’ decided that ‘the development of an air transport system Was SO V ital-to the country *s security-and Fe other national interests that mail_pay~ should be used to ° \ guara’ itee eflicient ar lines a profit or insure them against : “teeeaas the wisdom of its conclusion would rot be review-. able here. *‘Congress, not thia’C ourt or the other federal courts, is the custodian of the Rea be.” nited States v. Standard Oil Ca., 332 U..8.' 332-0. S301, 314. But how TWA’s ‘‘reasonable IERIE “should be compited, after the facts are examined, is notin issue ‘now. That: question will be for the Board to determi ein’ the fir first-instance, after a hearing on the. facts.. Jthis Couyt’. is not being asked, and could not possibly decide, that pres- ently hypothetical question. Tt is entirely irreley ant here whether | aR adjusted reasonable rate would or would not. entitle, TWA to’ a guaranteed profit or a guaranty against lossés, either on all its operations er on its my ‘operations; 6 The Board's pretended horror at the “cost plus” spectre which | it conjures up stands in ironical contrast to its statement in Western Air Lines, Inc., Order No. E=2333 (Dec. 30, 1948), quoted in Res. Br., p. 92, note 89. There the Board, proposing t6 punish the airline “oe for iccpihd a “protective petition” on. file by reducing its, mail pay retrospectively back to 1044, said: “The effect of keeping the mail Tate constantly in imue through the device of ‘protective’ petitiens, is to place the Carrier ond cost plus hasis” ( p. 5). ae “* ’ : Oe . — innuendoes only dive rt attention from . £> note. - & es or conceivably be some other rate which might fall within the zone of reasonableness. The Board has he dd that it- is powerless to make any adjustment in the rate_oven _though it was unreasonably low... * .. —-—" Nobody contends that “Congn ress 4 Save the. Board a. . blank ‘check?’ {Res. Br, » Pe 44° it prescribed the, standards -whitb the Board should consider in determining fair and — reasonable’ rates of conipensation. Admitty -dly- the Board applies those standards retrospectively. whet it revises an avowedly ‘$temporary?” rate or adjusts’ mail rates back to. the date when a proceeding was begun. All that TWA ‘really seeks’’ bs that the Board’ .ipply . the very same standards, in the” very same way, back to the date when it. claims the rate. became unreasonably low. The Board | would not guarantee profit or underwr ite losses ‘any more ° coal A - 42 in one situation.than another. It: would not have to give ae any more weight to an audit of proper costs than it ‘gives’ | right now when making. its coneededly retrospective ad- justments.. * The whole argument is “entirely ee 5 a a ? Wing “p. ‘The Kate Reducticn Argument. 1. ‘The Board says tliat the exercis@ of a power to re-" duce rates would remove ‘‘all incentive toward managerial. efficiency and the development of nonmail | revenues,” and prevent airlines from planning for the future (Res. Br., p. 42). These avowals of solicitude may be contrasted with its proposal, made ‘barely a month: ago, to punish aw airline for keeping a ‘* protective petition’’. on file by reducing its "1944 rate.” The Board said nothing at all about the. Te- moval of ‘‘incentive’’ or the effect on. the airline’ s plans. In Western Air Lines, Inc:, Order No. F-2333 (Dec. 30, 1948), the Board preposed to recapture “relatively high profits re-. ~ ecived” in. P94. (p. 4), for the reasons quoted in Res. Br., P. 92, + “Nothing i oe Act: ‘remotely segments that Congress eteg sotvht to inspire airlines to'greater efficiency by assuring ‘them complete immunity against: recapture ‘of exorbitant mail pay. The airlines have ample incentive. to eftic ieney ° -withonrt that. immunity, if only ‘because §406(b) of the Act- . Spe weifieally provides that mail pay is based’ on the exercise of. ‘honest, economical, and efficient. management. ” The inducement held out to them was ‘reasonable compensar,, tion,”’ ‘not exorbitant. compensation. F Se ee tag - a * ens 2. of course the Bogrd would not’ “have to recapture excessiv @ prefits earned in. the past”’. if it determined after a hearing that this would defeat the purposes. of the Act. Later it admits tliis but argues that “the vice of the situa~ _tion lies in the existence of the power as much as in its exercise, for its mere existence gives rise, to uncertainty?’ (Res. Br., p. 43). But the Board concededly now has, and occasionally exercises, the power to reduce rates retro- spectively back to thé date of the proceeding. Yet the ‘‘un- certainty’’ suppdsed to be: engendered from the existence of that pow er has: not served to reduce the airlines’ incent- . dve to efficiency, OK prevented them from planning for the future. -If the Board thinks otherwise, it should ask Con- gress to depriv e it: of all’ poyer to reduce mail pay retro-,-° spectively. oy Ne oo ty : E. ‘The Uniform Rate Argument. od ay The 1 Board acserts that, if the ‘make effective’’ clause is interprete “das iter eads, airlines would have no-*‘incentive to live’? within a Lead rate “set, for several ‘‘carriers Sea \\ - . . ¢ oT Seee.g., Pat Ameérican-GraceAirways, Inc—Mail. Rate 5, : ~€- “A, B. 550, 561; American Airlie S, Inc., ‘et al.: Mail ‘Rates, C. A. B: 90,.92-93. : Che eae . ys 4 = f~ . 48 with similar chayacteristies" (Res. Br., p. 44). ‘Seetion * ~ $06(b) of the-Act does not require, but only permits, the > Board to fissa Ghiform rate for a class of airlines.. Ifthe Board's experience. with iform ¢lass rates 4s any cri- terion (see Pet. BA, ppef13, note 4); their value is highly bious. But the atgumient? i is “basically unsound, since -an airline could never obtain ‘relief fPom the uniform ‘rate’’ if it df not try to live within it, for it would not bé operatipg ‘‘under honest, economical, an@etlicient manage." ment.’* Besides, when events operate entirely differently on the members of a “class,” the preconceived pattern of uniformity must yield to the logic of events. | : ; __F. The Constitutional Point. | Whether dir mail carriers were placed under the same ‘‘abrupt legal compulsion imposed on the existing railroads by the Raikway Mail Pay’ Act’’ (Res. Br., b- 96) is utterly - immaterial. + Tlie controlling fact is that, as already seen, — once an airline occupies the status of an authdrized mail carrier, it is forced to-carry mail. Therefore its right to compensation is defined by the Fifth Amendment. In United States v. New York Central Rd. Co., 279 U.S. 73, the Court did not express ‘*the opinion that no consti- tutional. right acerwed-until a petition challenging the rate was filed’? (Res. Br., p. 94). That question was not at issue there. The Court merely pointed out, for purposes of dis-. cussion, that the situation before it was different from the point arising here.” ° re "hi . 7 * 72 Doubtless constitutional rights cary be waived, but whether they | have been waived raises a question of faet, »which.has not yet been PS examined. C I. the specs cited supra, note 68._ / The dixsimilgritt of the public utility Cases to- which the Board re fers has already been: shown (Pet. Br., p. 3d, _ note 119). No case cited by the, Bontd held that, when it is practically feasible to. ‘adjust compensation for comptl- “sory serviges rendered in the past, the C onstitution permits it to be fictitiously frozen at. a unreasonable figure. The Act should be ¢ oustrued to avoid the serious. constitutional quéstioii/which arises under the Board’s construction. / Ss a »* _ Summary 2 2° The Board really asks thiseC ourt to sit as a super- Jegi: slature, choose between the numerous policies which were epen to. Congress, and rewrite the Act so.as to substitute for the broad power of §406(a)(1) the words used in one of the publie utility rate.provisions of the. statute. We ‘are not at liberty to be governed by those policy consider ations ‘in deciding the naked question of law whether the Board is now, in this case, acting within the terms of the statute... However we might sppraise the force of these | Sretments as a policy matter, we are not authorized to . base decision of a question of law upon them. They concern the wisdom of the legislation; they cannot alter the meaning: of- otherwise plain provisions.’’ Packard Motor C ar Co. v. National Labor Relations Board, 330 U.S. 485, 493. The _ plain language of this Act gives the Board the power denied it by the decision helow. By eo * ‘ he Pet | Aad ra aie 50 io CONCLUSION. The Selanne of the Court of en shoul@_be re- versed and the procee ding remanded to the Board. for a heari ing on the merits. ‘ e aS a Respectfully eG, . ee B. Bropuy, se _ Attorney for Petitioner: (Hartes PICKETT, Joseru S. Isewan,’ 3 of Counsel. .-~. ° hey Dated 7 N ew York, N..Y., February 8, 1949. Reh, ee ad Bea > va y \e at, | * ~, ? . * end 4 a. See a © we eae oe / { 2 . Cc i : e ; ‘ . 1 . & 1 i © P 7 o : ; : 7 e j ’ « o tow a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0127%3A4. Public record. Not legal advice.