DELAWARE & H CO v. US , 266 U.S. 438 (1925)

Messrs. H. T. Newcomb and Walter C. Noves, both of New York City, for appellants.

[266 U.S. 438, 443]   Mr. Blackburn Esterline, of Washington, D. C., for the United States.

[266 U.S. 438, 445]   Mr. P. J. Farrell, of Washington, D. C., for Interstate Commerce commission.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

Appellants are proprietors of the railroads which make up the system now operated by the Delaware & Hudson Company. Purporting to proceed as required by section 19a, Interstate Commerce Act, as amended (Act March 1, 1913, c. 92, 37 Stat. 701; Act Feb. 28, 1920, c. 91, 41 Stat. 456, 493; Act June 7, 1922, c. 210, 42 Stat. 624 [Comp. St. Ann. Supp. 1923, 8591 ]), the Interstate Commerce Commission, on March 28, 1923, declared tentative valuations of the properties which the several companies owned June 30, 1916, and allowed 30 days from April 12th for protests. [266 U.S. 438, 446]   Elaborate protests were duly presented. Before they were acted upon appellants began this proceeding-June 13, 1923-wherein they claim that defects in the valuation order prevented them from adequately protecting their rights by protests, and pray that it be annulled. The petition states that the Commission refused to investigate, ascertain, and report many facts relative to values as required by the statute; refused to investigate, ascertain, and report concerning properties used by the Delaware & Hudson Company for purposes of a common carrier; refused to apply to inventories prices existing and current on June 30, 1916; omitted to report analyses of the methods employed for ascertaining values, costs, etc.; also omitted to investigate and report the amount of working capital actually used for purposes of common carriers.

Upon motion the petition was dismissed for want of equity, and the matter is here by direct appeal.

Section 19a of the Interstate Commerce Act, as amended, provides:

'(a) That the Commission shall, as hereinafter provided, investigate, ascertain, and report the value of all the property owned or used by every common carrier subject to the provisions of this act. ...

'(b) First. In such investigation said Commission shall ascertain and report in detail as to each piece of property, other than land, owned or used by said common carrier for its purposes as a common carrier, the original cost to date, the cost of reproduction new, the cost of reproduction less depreciation, and an analysis of the methods by which these several costs are obtained, and the reason for their differences, if any. The Commission shall in like manner ascertain and report separately other values, and elements of value, if any, of the property of such common carrier, and an analysis of the methods of valuation employed, and of the reasons for any differences [266 U.S. 438, 447]   between any such value, and each of the foregoing cost values.

'Second. Such investigation and report shall state in detail and separately from improvements the original cost of all lands, rights of way, and terminals owned or used for the purpose of a common carrier, and ascertained as of the time of dedication to public use, and the present value of the same.

'Third. Such investigation and report shall show separately the property held for purposes other than those of a common carrier, and the original cost and present value of the same, together with an analysis of the methods of valuation employed. ...

'(f) Upon the completion of the valuation herein provided for the Commission shall thereafter in like manner keep itself informed of all extensions and improvements or other changes in the condition and value of the property of all common carriers, and shall ascertain the value thereof, and shall from time to time, revise and correct its valuations, showing such revision and correction classified and as a whole and separately in each of the several states and territories and the District of Columbia, which valuations, both original and corrected, shall be tentative valuations and shall be reported to Congress at the beginning of each regular session. ...

'(h) Whenever the Commission shall have completed the tentative valuation of the property of any common carrier, as herein directed, and before such valuation shall become final, the Commission shall give notice by registered letter to the said carrier, the Attorney General of the United States, the governor of any state in which the property so valued is located, and to such additional parties as the Commission may prescribe, stating the valuation placed upon the several classes of property of said carrier, and shall allow thirty days in which to file [266 U.S. 438, 448]   a protest of the same with the Commission. If no protest is filed within thirty days, said valuation shall become final as of the date thereof.

'(i) If notice of protest is filed the Commission shall fix a time for hearing the same, and shall proceed as promptly as may be to hear and consider any matter relative and material thereto which may be presented in support of any such protest so filed as aforesaid. If after hearing any protest of such tentative valuation under the provisions of this act the Commission shall be of the opinion that its valuation should not become final, it shall make such changes as may be necessary, and shall issue an order making such corrected tentative valuation final as of the date thereof. All final valuations by the Commission and the classification thereof shall be published and shall be prima facie evidence of the value of the property in all proceedings under the Act to Regulate Commerce as of the date of the fixing thereof, and in all judicial proceedings for the enforcement of the act approved February fourth, eighteen hundred and eighty-seven, commonly known as 'the Act to Regulate Commerce,' and the various acts amendatory thereof, and in all judicial proceedings brought to enjoin, set aside, annul, or suspend, in whole or in part, any order of the Interstate Commerce Commission.'

The 'tentative valuation' of the statute is no more than an ex parte appraisement without probative effect. By the authorized 'protest' the carrier may offer objections to anything done or omitted in respect thereof and secure the Commission's rulings before the valuation becomes final. Prior to the present proceeding protests, raising the very issues now tendered, had been made and were awaiting action. There is nothing to indicate that the Commission willfully disregarded the law as honestly interpreted or failed to proceed in an orderly manner, or that it will not consider and pass upon all the [266 U.S. 438, 449]   matters set up in the protest and repeated here. Pending further action by it the tentative valuation will not become final and no proceedings thereon can be taken. Under the circumstances disclosed appellants must pursue the remedy provided by the statute and give the Commission opportunity to take final action before they can properly ask interposition by the courts.

The decree below is affirmed.

Mr. Justice BUTLER took no part in the consideration or decision of this cause.