SOUTHERN R. CO. v. NORTH CAROLINA(1964)
[ Footnote * ] Together with No. 93, United States et al. v. North Carolina et al., also on appeal to the same court.
The Interstate Commerce Commission under 13a (2) of the Interstate Commerce Act authorized appellant railway company to discontinue two intrastate passenger trains, which provided the last remaining railway passenger service between two cities, having found that the service constituted an undue burden on interstate commerce and that the present or future public convenience and necessity permitted discontinuance of the service. A three-judge District Court set aside the Commission's order on the ground that the Commission had applied erroneous legal standards by not taking proper account of the freight profits on the line and the overall prosperity of the carrier. Held:
William T. Joyner argued the cause for appellant in No. 74. With him on the brief were Earl E. Eisenhart, Jr., Robert L. Randall and William H. Allen. [376 U.S. 93, 94]
Robert W. Ginnane argued the cause for the United States et al. in No. 93. With him on the brief were Solicitor General Cox, Assistant Attorney General Orrick, Philip B. Heymann, Robert B. Hummel and H. Neil Garson.
Charles W. Barbee, Jr., Assistant Attorney General of North Carolina, and F. Gordon Battle argued the cause for appellees in both cases. With them on the brief were Thomas Wade Bruton, Attorney General of North Carolina, E. C. Bryson, Victor S. Bryant, A. H. Graham, Jr. and E. C. Brooks, Jr.
Edward J. Hickey, Jr. and James L. Highsaw, Jr. filed a brief for the Railway Labor Executives' Association, as amicus curiae, urging affirmance.
MR. JUSTICE STEWART delivered the opinion of the Court.
In 1959 the appellant Southern Railway Company filed a petition with the North Carolina Utilities Commission for an order permitting it to discontinue operation of two intrastate passenger trains between Greensboro and Goldsboro, North Carolina, a distance of about 130 miles. The trains in question are No. 16, which operates eastbound in the morning from Greensboro to Goldsboro, and No. 13, consisting of the same equipment, which operates westbound in the late afternoon. Since 1958 these two trains have provided the last remaining railway passenger service between the two communities. The State Commission denied the petition, and its decision was upheld by the North Carolina Supreme Court. State of North Carolina v. Southern Railway Co., 254 N.C. 73, 118 S. E. 2d 21 (1961).
Thereafter the railway company filed a petition with the Interstate Commerce Commission pursuant to 13a (2) [376 U.S. 93, 95] of the Interstate Commerce Act, 1 seeking authority to discontinue operation of the trains. After a hearing at which several protestants, including the State of North Carolina, appeared, the examiner recommended that the petition be granted. Division 3 of the Commission agreed with the examiner and ordered discontinuance of the trains. The Division issued a report in which it found, inter alia, that the trains, which in 1948 had carried 56,739 passengers, carried only 14,776 passengers in [376 U.S. 93, 96] 1960, the last full year for which figures were available; that the direct expenses of operating the trains during the latter year were over three times their total revenue; that discontinuance of the trains would result in savings of at least $90,589 per year; that the need shown for these trains was relatively insubstantial when viewed in light of the density of the population of the area served; that existing alternate transportation service by rail, bus, airline, and other means was reasonably adequate; and that the discontinuance of the passenger train service would not seriously affect the industrial growth of the area. Against the background of these findings, the examiner and Commission considered, but gave "little or no weight" to the overall prosperity of the carrier. The Commission's basic conclusions were summed up as follows:
The District Court's action in setting aside the Commission's conclusions as to public convenience and necessity and undue burden on interstate commerce was explicitly based upon the court's view that the Commission had applied erroneous legal standards in reaching those conclusions. The court did not question that the Commission's subsidiary findings of fact were supported by a substantial evidentiary foundation. It simply disagreed with the Commission as to the kind of evidence required to support an order permitting discontinuance of an intrastate passenger train under 13a (2).
The court reached its conclusion that the Commission had erred in not taking into account profits from freight operations along the Greensboro-Goldsboro line primarily in reliance upon this Court's decisions in Public Service Comm'n of Utah v. United States, 356 U.S. 421 , and Chicago, M., St. P. & P. R. Co. v. Illinois, 355 U.S. 300 . Both those cases dealt with 13 (4), which requires the Commission to change intrastate rates wherever such rates are found to discriminate against interstate commerce. This Court held in those cases that the Commission could not authorize higher intrastate rates either for passenger or freight operations without first taking into account the revenues derived by the carrier from the totality of intrastate operations. In 1958, the year in which 13a (2) was enacted, 13 (4) was amended to [376 U.S. 93, 99] permit the Commission to act "without a separation of interstate and intrastate property, revenues, and expenses, and without considering in totality the operations or results thereof of any carrier . . . wholly within any State." 3 The District Court's holding that the same kind of data should be considered in 13a (2) proceedings was premised upon the fact that no language similar to that of the 13 (4) amendment was included in 13a (2) and that proceedings under the latter provision, which permits discontinuance of given operations, have a far more serious impact upon intrastate passengers than proceedings under the former, which provides only for an increase in the rates to be charged.
But when 13 (4) was amended in 1958 as a result of the two decisions relied on by the District Court, Congress was simply reaffirming what it conceived as the original intent of the section. 4 There is therefore no reason to [376 U.S. 93, 100] assume that Congress regarded the new language as embodying a standard which had to be specifically incorporated into every statutory provision to which it was intended to apply.
The legislative history clearly indicates that Congress in enacting 13a (2) was addressing itself to a problem quite distinct from that reflected by overall unprofitable operation of an entire segment of railroad line. The Commission already had authority prior to 1958, under 1 (18)-(20), 5 to authorize discontinuance of all services on any given intrastate line where continuance of [376 U.S. 93, 101] such services would impose an undue burden on interstate commerce. Colorado v. United States, 271 U.S. 153 . However, the Commission totally lacked power to discontinue particular trains or services while leaving the remaining services in operation. It was precisely this gap which 13a (2) was intended to fill. New Jersey v. New York, S. & W. R. Co., 372 U.S. 1, 5 -6. As both the House and Senate Committee Reports on the legislation which became 13a (2) make clear, Congress was primarily concerned with the problems posed by passenger services for which significant public demand no longer existed and which were consistently deficit-producing, thus forcing the carriers to subsidize their operation out of freight profits. 6 Far from permitting the carrier's need for discontinuance of passenger services to be balanced against profits from other operations conducted [376 U.S. 93, 102] along the same line, the bill as originally reported by the Senate Committee would have required the Commission to permit discontinuance, even if there was great public need for the service, so long as the continued operation of a particular service would result in a net loss to the carrier. 7 Senator Javits unsuccessfully attempted to amend the bill on the floor of the Senate to delete the net loss standard and to substitute a requirement that the Commission balance the public need for the service against the deficit resulting from it. 8 Such an amendment, proposed by Chairman Harris of the House Interstate and Foreign Commerce Committee, was adopted by the House, 9 and accepted by the Senate in conference. The deletion of the net loss standard, however, by no means implied that freight profits along a given line could be offset against deficits incurred by passenger services for purposes of determining whether the latter constituted an undue burden on interstate operations or commerce. As Congressman Harris made clear after his amendment had been accepted, the situation "we are trying to get at" is that in which "the [freight] shippers of this country are making up a deficit every year . . . in losses in passenger service." 10
The bill as originally reported by the Senate Committee would have applied the net loss standard to both interstate and intrastate operations, the Committee Report having concluded that state regulatory bodies required [376 U.S. 93, 103] "the maintenance of uneconomic and unnecessary services and facilities." 11 The bill was amended on the Senate floor to limit the Commission's discontinuance authority to interstate trains, 12 and the House version of the bill was similarly limited. 13 In conference, however, the Commission's authority over intrastate trains was restored and, except for differences in the procedures prerequisite to a hearing in the case of a wholly intrastate train, 14 the Commission was required to apply the same standard to interstate and intrastate operations in determining whether discontinuance of a train or service is justified. 15 Contrary to the suggestion of the District Court that its interpretation of 13a (2) must be accepted to avoid "requir[ing] the intrastate operations to bear more than their share," 210 F. Supp., at 680, the statutory scheme which Congress has embodied in 13a thus prescribes precisely the same substantive standard to govern discontinuance of either interstate or intrastate operations. 16 [376 U.S. 93, 104]
All that need properly be considered under this standard, as both the language and history of 13a (2) thus make abundantly clear, is what effect the discontinuance of the specific train or service in question will have upon the public convenience and necessity and upon interstate operations or commerce. As the Commission has correctly summed up the matter in another case:
Whatever room there may be for differing views as to the wisdom of the policy reflected in 13a (2), it is the duty of the Commission to effectuate the statutory scheme. We cannot agree with the District Court that the Commission departed in any respect from that duty [376 U.S. 93, 106] here. We therefore reverse the judgment of the District Court and remand with instructions to reinstate the report and order of the Commission.
[ Footnote 2 ] It should be noted, in connection with the findings made by the District Court, that the Commission had noted that the increase in passenger traffic during 1961 was largely due to group movements of school children; that, as to Southern's failure to seek passengers, "prospective patrons who must be coaxed to use a service have no urgent need for it"; and that, after a broad study and investigation in 1959, the Commission had concluded that "public convenience and necessity" does not require the maintenance of deficit passenger services as a standby service for travelers who customarily travel by highway or by air. Railroad Passenger Train Deficit, 306 I. C. C. 417, 482.
[ Footnote 3 ] 49 U.S.C. 13 (4), as so amended, provides in pertinent part: "Whenever in any such investigation the Commission, after full hearing, finds that any such rate, fare, charge, classification, regulation, or practice causes any undue or unreasonable advantage, preference, or prejudice as between persons or localities in intrastate commerce on the one hand and interstate or foreign commerce on the other hand, or any undue, unreasonable, or unjust discrimination against, or undue burden on, interstate or foreign commerce (which the Commission may find without a separation of interstate and intrastate property, revenues, and expenses, and without considering in totality the operations or results thereof of any carrier, or group or groups of carriers wholly within any State), which is hereby forbidden and declared to be unlawful, it shall prescribe the rate, fare, or charge, or the maximum or minimum, or maximum and minimum, thereafter to be charged, and the classification, regulation, or practice thereafter to be observed, in such manner as, in its judgment, will remove such advantage, preference, prejudice, discrimination, or burden . . . ."
[ Footnote 4 ] "[I]t is the possible interpretation of these recent court decisions that would create a change in the present regulatory scheme." H. R. Rep. No. 2274, 85th Cong., 2d Sess., 12.
[ Footnote 5 ] 49 U.S.C. 1 (18) provides in pertinent part: "No carrier by railroad subject to this chapter shall undertake the extension of its line of railroad, or the construction of a new line of railroad, or shall acquire or operate any line of railroad, or extension thereof, or shall engage in transportation under this chapter over or by means of such additional or extended line of railroad, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity require or will require the construction, or operation, or construction and operation, of such additional or extended line of railroad, and no carrier by railroad subject to this chapter shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment." 49 U.S.C. 1 (19) provides in pertinent part: "The application for and issuance of any such certificate shall be under such rules and regulations as to hearings and other matters as the Commission may from time to time prescribe, and the provisions of this chapter shall apply to all such proceedings." 49 U.S.C. 1 (20) provides in pertinent part: "The Commission shall have power to issue such certificate as prayed for, or to refuse to issue it, or to issue it for a portion or portions of a line of railroad, or extension thereof, described in the application, or for the partial exercise only of such right or privilege, and may attach to the issuance of the certificate such terms and conditions as in its judgment the public convenience and necessity may require."
[ Footnote 6 ] "A major cause of the worsening railroad situation is the unsatisfactory passenger situation. Not only is the passenger end of the business not making money - it is losing a substantial portion of that produced by freight operations. . . . . . "It is obvious that in very great measure these passenger losses are attributable to commuter service. . . . It is unreasonable to expect that such service should continue to be subsidized by the freight shippers throughout the country. "There are substantial losses, however, occurring in passenger service beyond those attributable solely to commuter service. Where this passenger service . . . cannot be made to pay its own way because of lack of patronage at reasonable rates, abandonment seems called for." H. R. Rep. No. 1922, 85th Cong., 2d Sess., 11-12. "A most serious problem for the railroads is the difficulty and delay they often encounter when they seek to discontinue or change the operation of services or facilities that no longer pay their way and for which there is no longer sufficient public need to justify the heavy financial losses entailed. The subcommittee believes that the maintenance and operation of such outmoded services and facilities constitutes a heavy burden on interstate commerce." S. Rep. No. 1647, 85th Cong., 2d Sess., 21.
[ Footnote 7 ] S. 3778, 85th Cong., 2d Sess., 6. See also the remarks of Senator Smathers, Chairman of the Surface Transportation Subcommittee, who made it clear that the net loss standard did not refer to all operations on a line or all operations within a State but rather to "the loss from the particular operation the railroad is rendering." 104 Cong. Rec. 10849.
[ Footnote 8 ] See 104 Cong. Rec. 10846-10849. See also pp. 10838-10839.
[ Footnote 9 ] 104 Cong. Rec. 12547-12548.
[ Footnote 10 ] 104 Cong. Rec. 12551.
[ Footnote 11 ] S. Rep. No. 1647, 85th Cong., 2d Sess., 22.
[ Footnote 12 ] 104 Cong. Rec. 10862, 10864.
[ Footnote 13 ] H. R. 12832, 85th Cong., 2d Sess., 10.
[ Footnote 14 ] Under 13a (2), which applies solely to intrastate trains, the Commission may not authorize discontinuance until after the appropriate state regulatory agency has been given an opportunity to act and has failed or refused to authorize discontinuance. See New Jersey v. New York, S. & W. R. Co., 372 U.S. 1, 4 .
[ Footnote 15 ] See 49 U.S.C. 13a (1), (2).
[ Footnote 16 ] The fact that Congress intended the same substantive standards to be applied both to intrastate and interstate discontinuances wholly vitiates appellees' argument that the Commission is required to take into account, wherever presented, the profitability of intrastate operations as a whole or any segment thereof whenever an intrastate service is sought to be discontinued. Thus, consideration of the overall prosperity of the carrier is necessarily relevant to a determination of the degree to which a deficit resulting from a given service constitutes an undue burden on interstate commerce. But neither the [376 U.S. 93, 104] profitability of such freight operations as are fortuitously conducted on the same line as a given passenger service nor the profitability of all operations within any given State bears any practical relationship either to the public's need for the service in question or to the burden which the deficit imposes on interstate commerce.
MR. JUSTICE GOLDBERG, with whom THE CHIEF JUSTICE joins, dissenting.
This case involves more than the fate of the 6:10 between Greensboro and Goldsboro, North Carolina. It is the first litigation to reach this Court concerning the criteria to be applied by the Interstate Commerce Commission in proceedings seeking discontinuance of intrastate passenger trains under 13a (2) of the Interstate Commerce Act, 72 Stat. 571, 49 U.S.C. 13a (2). This section provides that where a State has failed or refused to allow discontinuance of an intrastate passenger train, the ICC may authorize the intrastate discontinuance if it finds "that (a) the present or future public convenience and necessity permit of such discontinuance . . . and (b) the continued operation . . . will constitute an unjust and undue burden upon the interstate operations of such carrier . . . or upon interstate commerce." The Court sustains the ICC in interpreting this provision to mean that, in determining whether an unprofitable intrastate passenger train shall be discontinued, the Commission need give: (1) "little or no weight" to the overall prosperity of the carrier, ante, at 96, and (2) no consideration whatsoever to the profitability of "the intrastate operations of the carrier as a whole, or any particular segment thereof," ante, at 104. 1 In my view the standards employed by the Commission were not the proper ones. Consequently, without intimating any opinion as to the merits of the discontinuance application, I would remand the [376 U.S. 93, 107] case to the Commission for further consideration and appropriate findings. See, e. g., Interstate Commerce Comm'n v. J-T Transport Co., Inc., 368 U.S. 81, 93 .
Since "[p]assenger deficits have become chronic in the railroad industry," Chicago, M., St. P. & P. R. Co. v. Illinois, 355 U.S. 300, 307 , the Court's decision will allow the Commission to authorize the Nation's railroads to discontinue virtually all intrastate passenger service - including most commuter services. It is difficult to conceive of a situation in this era of widespread bus, airline and automobile transportation in which the Commission cannot find that alternative services are more or less available to handle the diminished railroad passenger traffic. Such a finding coupled with a "net loss" on the passenger trains will meet the discontinuance standard approved by the Court. The Court concludes that this result has been mandated by Congress. If this were so, there would be no basis for dissent, since I agree entirely with the Court that "[w]hatever room there may be for differing views as to the wisdom of the policy . . ., it is the duty of the Commission [and the Court] to effectuate the statutory scheme." Ante, at 105. I do not believe, however, that it can be fairly concluded from the statute or from its legislative history that Congress intended, despite the ruling of a state authority, that intrastate passenger trains could be discontinued on the basis of the slender showing required by the ICC and approved by this Court.
The case turns upon the language and purpose of 13a (2) of the Interstate Commerce Act. This section was first enacted as part of the Transportation Act of 1958. It is true, as the Court points out, that this legislation reflects concern with "the worsening railroad situation." Ante, at 101, n. 6. But it is far from accurate to conclude that Congress was oblivious of the needs of the passenger public and of the primary responsibility of [376 U.S. 93, 108] state commissions for the regulation of purely intrastate service. Under 13a (2) a railroad seeking to discontinue an intrastate passenger train, as distinguished from an interstate operation, must first apply to the appropriate state commission. Only after the state commission has been given the opportunity and has failed or refused to act is the ICC authorized to intervene. The Commission may reverse the decision of the state agency only upon findings, supported by substantial evidence, that the service is not required by public convenience and necessity and that its continuance will constitute "an unjust and undue burden . . . upon interstate commerce." Senator Smathers, one of the bill's sponsors, explained that 13a (2):
I read the Act and its history to require the Commission to take into account all material factors established by evidence presented by the parties and bearing on the issues of public need and burden on interstate commerce. The three-judge District Court properly observed that these issues are "not susceptible of scientific measurement or exact formulae but are questions of degree and involve the balancing of conflicting interests." 210 F. Supp. 675, 684. I cannot comprehend how the Commission can achieve a proper balance without fully considering the railroad's relevant profit data. The issues - whether the public need will allow discontinuance of the [376 U.S. 93, 110] passenger service and whether continued operation will unduly burden interstate commerce - are interrelated. Under any common-sense view of the statute, the amount of the railroad's financial loss on the two intrastate passenger trains cannot be considered in isolation from its freight profits on that line, its intrastate profits, or its overall prosperity. The words "unjust" and "undue" clearly indicate that Congress intended that the mere fact that a particular passenger train is operating at a loss - i. e., is a burden - would not in itself justify discontinuance of that train. The burden must be "unjust" and "undue," and whether this is so cannot be determined except in light of the total circumstances. The final determination must be made by balancing all the relevant factors - "the effort being to decide what fairness to all concerned demands." Colorado v. United States, 271 U.S. 153, 169 . As the decisions of this Court plainly indicate, this does not mean that discontinuance is prohibited unless intrastate passenger and freight service considered together show a net loss or overall profits are substantially impaired. Colorado v. United States, supra; Transit Comm'n v. United States, 284 U.S. 360 . Rather, freight profits and overall profits are merely factors to be considered by the Commission in determining whether the particular passenger loss constitutes an unjust and undue burden on interstate commerce when balanced against the public need. 2 Such profits may not be the controlling factors but, when presented, they are to be considered. [376 U.S. 93, 111]
The Court dealt with an aspect of the intrastate passenger problem in Chicago, M., St. P. & P. R. Co. v. Illinois, 355 U.S. 300 , and Public Service Comm'n of Utah v. United States, 356 U.S. 421 . These cases involved the construction of 13 (4) of the Interstate Commerce Act which authorizes the Commission to change intrastate rates whenever such rates discriminatorily burden interstate commerce. In the Chicago case the Court said:
In any event, even if the differing language is to be understood as importing the same standards, it seems to me that the Court reads the amendment to 13 (4) too broadly. The legislative history shows that Congress intended the amendment to allow the ICC to make a decision under 13 (4) without considering the totality of the carrier's operations when the parties have not presented these facts to the Commission. When these data are presented, however, and put in issue the amended section would not permit the Commission to ignore the evidence. The amendment provides that the Commission may make its determination without a separation of revenues. The permissive "may," read in light of the legislative history, reflects the intent of Congress "that [376 U.S. 93, 113] a decision of the Commission will not be upset simply because it fails to find specifically these facts where they have not been put in issue by the evidence before the Commission, but this does not mean that such facts where relevant and pertinent are not to be considered." 210 F. Supp. 675, 682. This interpretation of the amendment is supported by this Court's affirmance of the decision of the three-judge District Court in Utah Citizens Rate Assn. v. United States, 192 F. Supp. 12, aff'd per curiam, 365 U.S. 649 . The District Court there said:
Finally, the legislative history of 13a (2) plainly demonstrates that the Court has mistaken the intent of Congress. The bill initially considered by the Senate [376 U.S. 93, 115] provided that discontinuance would be denied and the continuance approved if the Commission found that:
On the floor of the House, Representative Harris, Chairman of the House Interstate and Foreign Commerce Committee, offered an amendment deleting the net loss clause. It was argued that the bill would:
The result intended by Congress certainly cannot be achieved by allowing the Commission to make a final ruling on a discontinuance application without considering the question of undue or unjust burden. 6 A "balanced authority" for the ICC surely means that before overriding state action and authorizing the discontinuance of a wholly intrastate passenger train, the Commission must consider all substantial evidence presented by the parties and bearing upon whether the discontinuance is consistent with public necessity and whether the continued operation will constitute an unjust and undue burden upon interstate commerce. In making this determination the factors for the Commission to consider necessarily include the character and population of the territory served; the passenger traffic or lack of it; the alternative transportation facilities; the losses on the passenger operation as compared with the revenue from freight on the particular line and the revenue from intrastate business as well as the profitability of the railroad as a whole. 7
The requirement that the Commission consider such factors certainly does not mean that it is precluded from [376 U.S. 93, 119] authorizing the abandonment of an uneconomic passenger train because the remainder of the railroad's intrastate or overall operations are profitable. 8 It means only that in making its determination the Commission shall give appropriate consideration to all relevant factors. One factor or a combination may prove controlling but all must be considered in making the statutory determination. This the Commission refused to do and, therefore, its isolated finding that public convenience and necessity would permit a discontinuance was insufficient, absent an appropriate consideration of the burden on commerce, to sustain its conclusion.
Although I agree, for the reasons stated, with the threejudge District Court in its interpretation of 13a (2), I am nevertheless of the view that that court misconstrued its reviewing role in finding that the operation of the two trains between Greensboro and Goldsboro served the public need and constituted no burden on interstate commerce. The court should not have determined this issue on the record before it but should have remanded the case for further proceedings by the Commission under the correct legal standard. See, e. g., Interstate Commerce Comm'n v. J-T Transport Co., Inc., 368 U.S. 81, 93 .
[ Footnote 1 ] See the statement of the hearing examiner set forth in note 4, infra.
[ Footnote 2 ] See Colorado v. United States, 271 U.S. 153, 168 -169 (Brandeis, J.): "In many cases, it is clear that the extent of the whole traffic, the degree of dependence of the communities directly affected upon the particular means of transportation, and other attendant conditions, are such that the carrier may not justly be required to continue to bear the financial loss necessarily entailed by operation. In some cases, although the volume of the whole traffic is small, the question is whether abandonment may justly be permitted, in view of the fact that it would subject the communities directly affected to [376 U.S. 93, 111] serious injury while continued operation would impose a relatively light burden upon a prosperous carrier. The problem and the process are substantially the same in these cases as where the conflict is between the needs of intrastate and of interstate commerce. Whatever the precise nature of these conflicting needs, the determination is made upon a balancing of the respective interests - the effort being to decide what fairness to all concerned demands. In that balancing, the fact of demonstrated prejudice to interstate commerce and the absence of earnings adequate to afford reasonable compensation are, of course, relevant and may often be controlling. But the Act does not make issuance of the certificate dependent upon a specific finding to that effect."
[ Footnote 3 ] See the Conference Report, H. R. Rep. No. 2274, 85th Cong., 2d Sess.
[ Footnote 4 ] The report of the hearing examiner, which was accepted by the Commission and is now approved by the Court, made it clear that a net loss standard was utilized: "At the hearing, protestants emphasized the fact that petitioner's net railway operating income in 1960 was $36,107,599, and that its net income alone from freight operations on the line between Greensboro and Goldsboro averages $630,000, thus contending that the overall prosperity of the petitioner, as well as its intrastate freight operations, [376 U.S. 93, 117] must be given effect in the disposition of the issues involved herein. With these contentions, the examiner disagrees. The legislative history of section 13a (2) indicates that the purpose thereof is to permit the discontinuance of the operation of services that `no longer pay their way and for which there is no longer any public need to justify the heavy financial losses involved.' (S. Rep. 1647, 85th Cong.). (Emphasis supplied). In considering a somewhat similar contention, in Southern Pacific Co. - Partial Discontinuance of Passenger Trains, Los Angeles, etc. [312 I. C. C. 631], the Commission made the following pertinent statement: "`Nowhere in section 13a (2) or elsewhere in the law is there any requirement that the prosperity of the intrastate operations of the carrier as a whole, or any particular segment thereof, must be given effect in determining whether the operation of an individual intrastate train imposes an unjust and undue burden on interstate commerce. To hold otherwise would be contrary to the apparent intent of the Congress.' "In this same connection, the argument that losing passenger operations must be supported by constantly increasing freight rates is also untenable. In rejecting this argument, the Commission stated that such `theory of regulation would not be consonant with the national transportation policy, and would be fraught with disastrous possibilities.' Great Northern Ry. Co. Discontinuance of Service, 307 I. C. C. 59, 61. Similarly, the fact that petitioner's system operations are profitable is entitled to little or no weight. . . ."
[ Footnote 5 ] This does not imply that either the Commission or the Court has failed to acknowledge that a carrier must show that public convenience and necessity will permit the requested discontinuance. However, as I have indicated, supra, at 107, unless the Commission relates this finding as to public convenience to an appropriate consideration of the burden issue, the availability of alternative means of transportation coupled with the fact of losses on diminished passenger traffic will suffice to sanction discontinuances in virtually all cases.
[ Footnote 6 ] Colorado v. United States, 271 U.S. 153, 168 , "The benefit . . . of the abandonment must be weighed against the inconvenience . . . . Conversely, the benefits to particular communities and commerce of continued operation must be weighed against the burden thereby imposed upon other commerce."
[ Footnote 7 ] The conclusion that 13a (2) contemplates the weighing of such factors is reinforced by the use of the same balancing approach under 1 (18), 1 (20), of the Interstate Commerce Act, 41 Stat. 477, 478, as amended, 49 U.S.C. 1 (18), 1 (20). These provisions, enacted in 1920, empower the ICC to permit abandonment of lines (as distinguished from particular trains), where continued operation of the [376 U.S. 93, 119] entire intrastate line would burden interstate commerce. See Colorado v. United States, supra; Transit Comm'n v. United States, 284 U.S. 360 .
[ Footnote 8 ] The ICC has never been precluded from authorizing abandonment of an uneconomic branch line (as distinguished from the particular trains) merely because the remainder of the railroad's intrastate operations were profitable. See note 7, supra. [376 U.S. 93, 120]