# Petition for Writ of Certiorari — Pan American World Airways, Inc. v. Civil Aeronautics Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0444%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1958 - **Citation:** 358 U.S. 836 ## Text Dfiica - Supreme Cou, US © AUG 12 1958 L = rey, Chart: "FILE COPY 3 ° ." fe ao elbee + Supeeme Vain wt the uited as | 24 ; ocTopER TERM, 1988 | : ° H es . —> St. Louis dS. F. R. Co. v. Gill, 156 TS. 649 (1895) S U" nited States vNQones, 336 UL S. GA CEE witeccecsstgneas 9-11. ed nited States v/ New Sock Cantral Railroad Co: ; iE Se 7 C1eas) SN ie Rem S PCN NONE ALON 7 Pi cidaat TION : \ - Constitution of the Uiiited States, Amendmem Vo.0. 2.7 Bi Nestocslcsncpesqakclgitncadbdnceapcstecs witabtass a he ly = . . STaTUrtes: Civil Acronautics “Act of 1948, : , a 49 U.S: C. 401 et ARIA Eee Danae. TNS oF TEER ns 93.7 Reorganization Plan No. 10 of 1995, 67 Stat. 644.000.2.5, 19 “ ~ tesa ” ‘ a ; . oy a a THE Supreme Court, af thr United wiates OCTOBER TERM, 1958 \ Pay. AMertian Wortp Arrways, Inc., Se es ; ; : e \ Vv. : ; \ ¥ : ’ Civ. Aeronautics Boarp, . . i Respondent. is . 7 + » 3 F Ser ae irs 7 ’ ‘ * PETITION FOR A.WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE. DISTRICT OF COLUMBIA CIRCUIT - . Pan American ‘World Airways, Ine... your Petitioner, prays that a writ of certiorari Je issued. to- review. the judgment of the United States Court of Appeals for’ the District. of Columbia C ircuit entered in the above-entitled 2.case on May 22 195s. Citations to Opinions Below The opinionvof the Civil’ Aeronautics Board, printed at I! S-59,* is as vet unpublished except in mimeogrephed. * Record referenges are to the printed Joint Appendix filed by the "parties below and submitted here pursuant to Rule 2113) of this Court. Pursuant to Rule 21(49, nine. additional copies of such Apperidix have -been filed for consideration by this Court. \ ew aA . A e . 649 x : ; | _ Petitioner, e%. a , a : ; 4 ae ; ue ‘forme \ Orde rr No. EA1060, The opinion of the United States c ourt of Appeals, printed in Appendix B, afra, i reported in\ F. 2nd | - "Jurisdiction \ The \udgme nt ‘we the ‘Court “of Appeals’ was ‘Gadel on May 22. 195s. The” jurisdiction. of this, Court is invokes. é ‘under 28 U &.C.; “Section 1254 ( 1). ~ Question Presented _ u « oe Can the United States lawfully require an air carrier “\ to transport United’ States. mail at rates which fail ‘to lneet the carrier's costs (including, prope rly ‘allocated com-, . “mon costs) and provide no returm on inve ‘tment? | Os ae ee Constitutional Provision and\ Statutes Involved | The \pfFtinent portions of Amendment V of the @onsti- tution of.the United States, of Sections 40M, 405, 406 and 1006 of the Civil Aeronautics Act of .b938,\and of Reor- ganization Mlan No. 10 of 19935 are printed in.) infra. -~ —\ Sia | ea cn Te lee Statement ON a Petitioner, Pan American World Airways, Tne. XP an _ American”), is an air carrier engaged in the th@asporta- tion by air of persons, property and mail under: certificates S of public convenience and necessity issued by the Civil . Aeronautics Board’ (“Board”) pursuant. to the provision: “of Section 401 of the CiWl Aervnauties Act of 10s q UBL... Section 481. -_ ‘certificates include OY tificate authorizing such transportation between various . * \ = \ ~ ‘ ~ 3 ° ‘ . \ ppendix a ee © f om ‘ y a - ; vi \ i ; Pe . r \: , os | ‘ . ‘ eae y\ °° a ae 8 OW eei a Ape Pdi les 3? \ cities on the West Voast of the Unived States and) Japan. Operations over tha, route, as well as othe authorized / \ operations in the Pac ite area, ére conduete by a divisibn of Pan Amefican called the Pacific Dysine SAS The Civil Aeronautics \Act. provides, in‘Section 401 (m),. ix that holders of mail certificates “shall, provide Hecessary | and adequate facilities and. service for the transportation of amail, and shalkatrypsport\ mail whenever required’: *by - the’ Postm ster MG ral,” fot which the air carrier “shall he panes pt “ reasonable “ompensation.”” Section 406. provides thu’ ht ‘Bound shall fix and deter rinine “the 7 fair and reasonablé rates-Of pensation” to’ be ‘paid. by\ he the Mostmaster' ‘General, Wt e Section 406,°as enacte ' provided that these rates should, under certain pci tions, “inchide a subeidy. element, Reorganization’ Plan 10. of 1953, GT Stat C4, directed complete and . doesnot even cover Pan Américan’s operating expenses, Which the Board itself computed to be 3o.72e per mail tom ON mile (including allocated costs ‘in acconlance with the Board's consistent practic «), and allows nothing for re- turn on investment. On the basis of the Board’ s-estimate, \ prepared in relation to thie calendar year 1955, the use \of the “standard mileage” redyced Pan American's service | dail pay for 1955 by $814,000, (R. 101). While forthe. -pavied through September 30, 1956, this reduction in *kerviee mail pay: led to an equivalent addition to, Pan American's subsidy mail pay, since that date I Amer- ‘ican has been ona temporary mail rate providing no sub- sidy and has suffered continuing loss for each pound of ©. \- mail which it is competed to carry on & non: compensatory basis. ‘ ae \ United States mail istone of ac uceited categories of traffic between the United States and: Tokyo, accounting - * fora of the total poundage earried by Pan American ’ over this route during the period April through December, -'s ¥ 195 ¢R. FO5-25). % . Taking Pan American's: Pacifie operations as a whole, cw mail wag 4 Q20e per ton nile, consisting of 4ha%e for operating expenses and faite for taxes and return investment, As a result gt the Inds cost West Coast Tokyo rate. however, the effective rate‘for Division is env 41.74e per ton mile CR. 101); whic covers operating expe nse cand prevides a mT HEPES ~- aniount for yet urn on inv} Stinent andtaxes, 5 Further, although Pan American also operates in other areas, through ather Diwisions, the.Roard’s procedures and* e standards for fixing’ service mail rates are such that none ° of the rates for these other-services contains any allowance iy in «xeess of the eost of carrying the mail plus -a. fair return on the allocaqed investment, Since. the Parric_ - Division rate Was Jess than compeé history it follows that = i” . S total compehsation for all fia service perfornied be Pan American was less than compensatory. — Pan, American” protested the’ West Coast- Tokyo. rate hefore: the Board, urging, Ider alia, ‘that it is_ entitled, under the statute and the Constitution, to be paid its costs plus a ree isonable return on its investment for compulsory mail service. However, the Board rejected Pan Ameri: can’s contentions and held that the rate was reasonable on the. ground that the Postmaster Genet ‘al had. no “need” . for Pan American's ‘circuitous rervicg and should not be ? reqifired to pay for the added mileage ;, that Pan American Les would obtain greater mail revenue with the same rate per P| ton to Tokvo as Northwest Airlines than with a higher . rate: anil that this would benetit Pan American and the Ciovernment.- ; The Court. of " Appes ils ne the District of . Columbia Cireuit affirmed, except that it modified the order in ‘one respect not relevant here. In essence, it held that Pan American had failed to. establish that the rate was “ urfair- cand unreasonable, as applied to it because e“a carrier may be: required to charge for’a particular | service a.rate which is not. frtly compensatory,” provided it is not thereby caused to lose money on ifgeaver-all business. Reasons for Granting the Writ © \ A. The decision of the Court of Appeals conflicts with applicable decisions of this Court. / "Petitioner made two basi arguments in support. of its contention that the below ost tate established for’ it by >the Board for the carriage of ‘Inail between the. West -« ~ Coast and Tokye was. illegal. . Rach of these arguments _ rested on decisions of this Court interpreting the, Con-- stitution of the United Statesj and the decision of the : " we Prd : i RC A eal ze as ra 4 ——? ; ‘ ss bn Ad 2 ¢~. } Ae @ ° =) : \ 7 ‘ ; ae iF E38 ‘Court of £ Appa i cithier ignores or is in contliet with such decisions. Pry % (1) Petitioner relied first.on : earthen Pacifie Railway Caysv. North Dakota, 256.0. 8. 585 (191: 9), which, held: fs ae) that the determination of cost for the purpose yp f of est: lishing éompens tory rates under the Con-. stitution must inelude’a fair: allocation. of, common |. Yosts (236 2h S. at 596); and at iad b) that a rate requiring a carrier to transport : any “signii icant category of. traffic at less th an the fully allocated gosts “(Cineluding eeapital costs) Is unlawful (256 UL S. at 604), - S4 7 | | rs ; ¥ 3 . NErGse -¢aine requirements are inherent’ inthe Board's. statutory duty to establish “fair andre asonable rates of compensation.” Although the order of the Board and the. decision of the Court of Appeals clearly conflict with Novittern Pactfie, they did net even, refer to tliat devi ‘ision. (2) Petitioner ‘alec cole “me that the rite, eatablished ‘by the Board de prived it of its constitution: aul right under _the Fifth Amendment to site { compensation.” > at 15 * “A thotieh it ia not’, SO ; states “he Court below seemingly ala that the’ furegoine decisions were oo iN- vpplicable by Balfintore & Ohio Railroad Cove US. 545 U.S. 146 C103), This Court there Weld, elton quis “tioning the principle of Northern Pacific, that the Inter- ree i state “Commerce Cominission could require railroads ‘to ‘ @y certain vegetables at less than eost in the absence “of an allegation that the. cht longed rates would make Mny @rilrond « Carry alt fresh Veuet tal les at on loss, where this “was bat one of a long series of € Omission’ orders dealing with “the fresh vegetable rate pattern. This decision to allow? tlie Interstate. Commerce Commission reasonable discretion to make “mninor alterations in avast, complex network of rates that apply to fresh shipments throughout _the Nation”. (345 TL So at 14s)* * does not allow the Civil Aeronautics ‘Board to. fix a confisea tory rate-for the car- “riage of United States, mail. a distinet « category of trattic . * While the Court below also referred toe toa ret Street Railway Co \. Railroad Comintission “ot Caliior ma, 324 U. 548 (19455 and its own decision in Raiivay Exfress Agency NM. Cit ‘if. Acronautics Board z43 F. ind 422 (C:AAVE 19574, along with Baltimore && Oftro, these decisions are so pk uinky im ippesite as to require bttle discussion The Rail: way Earress ygconcy case held only that a carrier gay velinmtarily establt-}: air freight rates W mich‘do not, fully meet all cost= of ely ation, despité “objections of oa competitor. . The HE ORES! ‘Street Railéay casesustained a rate which was‘fait and reasonable © — thyetmsis of ‘the hetulemarket value of the properties ef a compas engaged in an obsclescent form of transportation but in: dequate on the hasis of the substanti: ly. higher beok value’ of the properties. stating that “the due process clause * * * car nat be applied wit aia to restore ‘ values that have been lost by the’ operation of econom! forces” (BMPS, at 867): ne such situation exists here. ** Northern Pacific itself secnainiaen that rdte making bodies have the degree of discretion permitted in B&O, asets clear from the dis- cussjen in Vorthern Pacific (236. U.S. at 600) of St, ‘Louis & SFP Co. Vv. Gill, 186.U. S640 61898), * | ty i ayy ee ‘ -&., e Ce i | > "which, in 19D), accounted for more than, 200 of Pan American's total) loads between the United States and Tokvo— particularly when sueh ovate results in ao nen- day meen! rate » fog all T. S, mail service performed by Pan American. . The Court below relied « on Y nited State sv. Jones, 336 VSP 641° (1949), where this Court held that a railroad ‘had failed to establish that a mail rate was “unfair and t unreasonable as applied to it” (336 U.S. at 66%).—In that. _here—that the rate was below cost. Thusy the question ated by this Court was what. Inethod of computation tof cost “should “be takert as determinative. af costs and thus af fair and reasonable rates” (350 FS. at 662; emphasis added )> The deci ‘ision contains not the slightest sug- gestion that the Goverrinent can lawfully reqnire mail to ote carried at less than cost, including a fair allocation ef common costs) and all costs found reasonable were allied, Here, on the basis of the Phard's own findings, the ra established for Petitjoner failed to comply with "9 that fundamental standard. ae” Referring to Hudson d Manhattan Ro Co.sy. United States, 313 U.S. 98 (1941); the Court below stated that sthe ‘Board “was right in siving weight” to its—finding ‘that- Pan American—wasbetter off with the-same rate as Koitdicent since it would thereby obtain greater mail’ revenue than with a higher rate. However! not only is it for Pan American's. management to make this type of business decision—and its judgment “was different from that of the Board—hut Hudson & Manhattan did not in- volve a less than compensatory rate for the traffic tow hich the rate tinder review applied. me * in. that case this Court, ina per curiam opinion, siistained ; a deter- mination of the Interstate Commerce&Commission which authorize “da fare increase from 6¢ to 8¢ on a service from New Jersey to dow: -, ~—etxe, however, the record did not show—what is shown . "% a B. The Court Mf panne decided an important question of ‘Federal law -which has not been but which should be ¢ettled by this Court. of etitione r contended wid showed not onl? that the: Ww est Codast-Tokyo imail rate was less than compensatory but that-oas a result of the noncompensatory ervice—the mail rates fixed for its entp€ Pacitie Division, and for all its U.S. mail carriage, wgre noneompensatory. But the Court of Appeals ignor all this and, after ‘referring to the statement in Baltimore-& Ohio, ‘supra, that “So long as. a railroad is not caused by such regula- Ose MONEY On ity, over-all business, it is: hard to- think. that its property was being taken for publie use ‘without just compensation’ ” (345 U.S. at 148), went on to state: “Prrn Yunertean does not contend it will lose money on? its overall Tokwo ebusiness, which * includes earrving passengers and. freight as well as mail.” This reasoning, and such reliance on Baltimore & Ohio, raise the impertant question, Which has not been but sliould be settled Dyethis Court, whether a-nonecompensa- tory rate can, lawfully be established for the eompulsory , carriage of U. S. mail where, as a yeni of revenues cava town New Y dt and disapprov ed the increase to.10¢ proposed by the carrier. The decision of thg Interstate Commerce Commission, “227 LC.C. 741 (1938), shows ‘that the railroad operated: two. services hetween New Tersex and New York City. one a short dine to down- town New Y ork and the other a long line teuptown New York. The | iy mice line was profitable. the uptown line was unprofitable, =~ e aggregate net income insiitherent te pre vide a fiir retuta. The ta increase was proposed only for the downtown line, with the intention: of generating énough profit, from that’ service to provide the carrier with a fair return on its tofal operations. The instant case is clear!s distinguishable on the facts, since there was no question that the Xe fare fixed hy the Commaission produced more than an adequate retur: for the traffic to which it applied. : rate Tor this - ———- ge eer other -nonmail ‘traffic, fhe carrier is not caused by such mail rate to lose money on its over-all\-business. -The implications of tlie opinion of the Court of Appeals vare-frighténing. If less than compensatory rates cah lawfully be established for compulsory mail service wher: . revenues from other traftie support the combined operation_ at a profit, then there ‘is no practical restraint on the Giovernment’s power to commandeer mail service without any compensation sat all. “This clearly ® would be ‘illegal, -and there is no logical: or legal basis. for Sustaining %a ” mail rate which, while providing some. .payment, does not meet the cost of rendering the sétvice, : This: important question was neither raised nor decided: in United States vy. Jones, supra, Where the -issue was whether the Interstate Commer ree Commission had fairly determined the cost, of mail service. No one sought to sustain the ruling of the Commission on the ground, relied on here by the Court of Appeals, that the railroad was not losing money on its over-all business. The very fact that the court: below thought that -Balti- more: Ohio supports a less than compe nsatory mail rate if revenues from nonmail traflie result in an over-all profit emphasizés the necessity for clear-cut) decision by this Court. In our view, the court below soreiy overextended Baltimore & Ohio. Indewd, even the practice of consider- ing passenger deficits in. fixing freight rates is limited to \ those cases where “interstate passenger.service inevitably and inescapably cannot bear its direet costs and its share of joint or indirect costs.” Aiipy. United States, 44 US 24, 261+ (1952), The discrimination against the dimes? and the ultimate consumer of the freight which this entails? Thay have’ been thought unavoidable with respect to rail -thination==nor oud the re ep any coneeivalTe hasis for one —that the U.S. mail service “inevitably and ineseapably - ‘ 12 aaa bear its direct costs and ‘its vere revel joint or indirect . gcosts.” Whether , lt ix also. important that this Court consider: _ complex and unelear rail __applied-testthe newtr Tiel of air tir trans portation, As Mr. Justice Frankfurter stated in his. dissenting Opinton in Public Serer United States, - >. ~ ~ ¢ i) B56 1. S242 Commissron of Utah vy. ( seal ‘ eee “There comes a tine in the development of tay, especially When it concerns as, complex and: impor : tant a subject as that in the present case, w comprehensive survey mnust be made and the cum lative effect of episodic instances appraised to determine whether or not they reveal a hartienious whole. Case by case adjudication, Without serutins of ounderhvinge generalizations or presuppositions, inust culminate inoan effort to determine whither weare wolnge and. whether the direction cut by the | Instances should be further pursued 6: represents a deviation from the path demanded by the purpose of the regulatory. legislation.” (pase 4209) : | | e : ° specitic It is even more iMportant that a proper start hae the transportation of mail, and such mail shall ~ he transported by the air carrier holding such “certific ate in accordance with sue ‘h rules, regu-. lations, and Pequirements as may be promul- “gated by the iis General under this section.” kono : . i, Section 406, Rates for Transportation of Wait-(49 USC ssi ' “Authority to Fix Rates \ \ F (a) The Authority is empowered. and ditecied, upen. its own initiative or upon petition of the Post- «master General or an air carrier, (1) to fix and determine from time. to time, after notice and hearing, the fair:and_reasonable rates. compensation for the transportation of pees by aircraft, the facilities used and useful there ~ for, and the service connected therewith (in- cet cluding the transportation of*mail by an ai: carrier by other means than aircraft: when. ? Appendix A éver such transportation is incidental to the transportation of mail by aireraft or «is, made necessary ‘by gonditions of emergency mrising from aircraft operation), by each holder of a certificate ‘authorizing the transportation of mail \by aircraft, and to make such rates effee- _ tive from such date as it shall determine to be proper (2). to presegibe the method or meth- ods, by ‘aircraft- -nile, pound-mile, weight, space, or’ any ¢ombination thyreof, or otherwise, for ~~ each. air -¢ ~ * + « .(3) to publish the same; and the rates so fixed | > and determined shall be- ‘paid by the Postmaster General from abpropriations for the transpor- ‘tation of mail Yy aircraft. o: * Seetion 408; Rates for Pisninsdieion of Mail ( 9 USC 486) ae. ~ \ ( “Rate- Making i Jements . : 7 (b) In. fixing and de termining fair and‘ reasonable - rates of compensation under: this section, the Authority, considering the conditions peculiar’ to trahsportition by aireraft and to the par- ~tienlar adxcarrier or class of air carriers, may fix differentNrates for different air carriers .or ‘classes of air Carriers, and différent “lasses of Serviee.. In determining the rate in each case, /the Authority shalPMake, into considerations / among other factors, the @ondition that sueh air /_ earriers may hold and pide ten or — authorizing the ‘arriage of mail only +ovid- | : ing necessary and adéquate facilities ‘a ser. ~ viee for the transpertation of mail: such stand- ards: respecting the character and- quality of service to be rendered by ait, carriers as may Sa pean’ such rates of compensation for. rrier-or class of air carriers; and ° / he’ prescribed “by or pursuant to laws and’ the s = 2 ‘ aoe x ee os us . Pas “W \ ‘ = 4 ¢ “USC 646) i piration of sa * 18 eis ‘Appendix A : : need of each such cartier for compensation for the transportation of mail sufficient: to insure - the performance of. such service, and, together with all other revenue of the air cargier, to enable such air carrier under honest, economi- eal and efficient management, to maintain and - continue the development of air transporfation: to the extent and of the character and ‘ality , required ph etiongenr ye of the United States, . the Postal Service, and the national defense.’ Section 1006 Judicial Reriew>ef Authority's Orders (49 “Orders of Authority Subject to Review. Thad 2 (a) Any order, affirmative op negative, issued by . the Authority under vita Act, ¢xcept any order a in-respect of any foreygn ~ Apa subject’ to f, the approval_of the /President as provided in’ section SOtof this /Act, shall be subject to re- view by the cirenitrourt—of appeals ofthe United States of the United States Court of _ Appeals for the District of Columbia upon | petition, filed within sixty days after the entry | __ of such.order, by any, person diselosing a sub ‘stantial internet in such order. After the ex. sixty days a petition maybe filed only by leave of court‘upon a showing of reasonable grounds. for failure to file the peti tion theretofore.” . €- Ne 9 c sein Al (49 USC 646) | Ps \ ~~ \ }\ Judicial Review of Authority's Orders ’ ~~ \ “Venue ° = FEN a? (b) A petition under this section, shall be filed in | | P 7 “\the court:for the cireuit wherein the petitioner | | ) i? i. Ses and the national defense.’ ” termined. by the Board in accordance with that sec- tion without regard to the following provision of subsection (b) thereof; ‘the-need of such carrier for ‘compensation for the transportation of mail suffi. cient to insure the performance of such service, and. together with all other revenue of the air earrier, to enable such air ¢arrier winder honest. economical, and efficient management, to maintain and continue j the devélopment of air transportation to the extent. >and of the character and quality required for the commerce of the United States, the postal service, — . / ° —! mye Ce Wy 4 : 2 7 ] ~ | > $ 4) oF &. ‘i , : , a = y ° {A i ¢ . ot oie = - . * : : - - Poto Wags: S12: eo s- na ope ne FOR THE Dis tRic’ LZ OF COL UMBIA- CIRCUIT 2 an ieee .* No. 1381% -@ Pax’ Amertcan Wort Airways, ING... PETITIONER a g / oe ; sw; Civi AkRoNAU TICS Boakb, RESPONDENT ee S’» oe : % a y “On ee for Review of an ‘Order of the ss Civil Aéronautics Board \ . ° . “ : 2 . \ ° a Decided May 22. 1O58- ; . Mr. Henry ef Frie ndly, with sia cee MWA Rohert C. Barward Was ‘on the brief, for petitioner, . , Mr.~ Morris Chertkor, Attorney, Civil. Neitieatie dJoard, with whom! Wessrs. Franklin M. Stone, \Geiieral Counsel, Civil: Aeronautics Boa. de John de W nner, Asso: . Af ciate General: Counsek, isd] Aeronautics: Soard, i> iD Ozment, Assistant General Counsel, l. itigation and MRe- seareh, Civil, Acronguties Board, and Danigl M. Friedman, ae . Attorney; Department of Justice, were-on the brief, for.” | respondent. a ee a ; a p | Before SMocerton, Chief Judge, sand. Bazetos and = / Bercer, Cirewt Judges. ne an a -Encerrox, Chief Judge: Northwest\tlies “a-shiort: route je between Seattle and Tokyo. Pan American, wider its } certifieate fom the Civil Aeronautics Board, ilies a much/ * ~ ; ; . i j * \ \better’ ow uy reason of the “equalized” rate than it would a os . cg . . ; % « e 7 oo Py : ‘ : 22 & | aN as. ape pee cr ee Appendix B ? longer route, via Hawaii, between San Franciseo and Tokyo. The Board fixed the Same “se rvice” rate Qype puted on thie basis of the shorter Northwest mileage, to he paid by the Postmaster General for carrying mail to and - from Pokvo by either route, :Pan:American contends this equalized rate fails to meet the statutory? “fair and reasonable” standard and the Mirth Amendment rust | compensation’ randard because, though the” rate more than covers out-of-pocket costs, it does not cover fully sulocated costs plix om including a return on, allocated investment. “The burden: of, proof is on Pan Americ an to show ‘that the rate is unfair and unreasonable as apphed to ait Usaited States vy. dones, 336 U SL O41, 665, .We think: it has not shown this. The) Board: says Pan American is a F he if rates were based on actual mileage, because the Post- “master General woul then give Northwest nearly. all Tokyo mail and this would, jtyke away a good deal of Pan NXmerican’s revenue, WeQhink the Board was riglit in giving weight to this faet” Midson & Manhattan R. Co. vy. United States, 313 U.S. 08. “Tt is not theory. but the” impact of the rate order which counts. Lf the. total eff bet of the rate erder cannot be said’to-be unjust and unreason able, judic ‘ial inquiry under the Aet is pt an end. sh Fede ps! Powe? Commission ¥. Hope Natural Gas C7., 320 US. 5 MH Oe" t+} + - A carrier imay be required te charge fora particular Service a rate that ix net fully compensatory, in the serse that it does not) cover fully allocated costs and returs. Be & OW R.-Co. ve United States, 345 US. 1462 Market Stree R. Co ve Railroad Commission of California, 324 Vv oe - ; “) . ee. ai Appendix B Us. 548. Ch. Ratdleay Eapress Arency v. Civil Aero- vautics. Board, 100 U.S. App. D.C. 165, 243 F. 2d 422.’ ISo long as a railroad is mot caused by sugh regulations to lose money on its over-all business, it is hard to think, that it could successfully charge that its property. was leing “taken forcpublie use ‘without just compensation.” Bid OQ. R. Co. vy, Unitag States, supra at 148. Pan Amerj- can does not ‘contend it will lose money on its over-all Tokvo. business, whieh includes” carrying eee and freight as well assmail. | But for one point, we on re aflirin ‘be Board's order. Pan Amerigan says thip servies rate should at least in- clude an allowance for carrying = hetween San, F ran- cisco and Seattle. We think this contention iS valid as far. as it iS applicable; bat it is applicable only to so much of Pan* American's Tokyo: mail as comes from or goes to such points that if: it were carried) between Seattle ond Tokvo®it would. have to be carried: between Seattle and. San Francisco. We think the Board should determine how mneh mail is in this earegoryeand revise its ordpr accord. ingly. | - —— Modified and affirmed, n F Os --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386419_0444%3A2. Public record. Not legal advice.