We hold that the statutory authority to fix reasonable compensation for the use of cars does not empower the Commission to establish, solely for general car-service regulatory purposes, rentals in excess of any purported reasonable recompense to the owner.
But, even if the Commission had the power it claims, the findings in its report are insufficient to support its order. We have examined the report with care, in an effort to find the obviously requisite determinations. There is no finding that the public interest in the return of cars to the owning railroads outweighs the public interest in the prompt movement of freight awaiting shipment at the initial unloading point of the car. There is no finding that an increase in the per diem would cause the return of a single car to its owner. There is no finding that in times of car shortage the necessities of non-owning railroads are less than those of the owning railroads. There is no finding that the present need for cars is on the owning roads rather than on the hiring roads. There is no finding that the roads which serve the large crop areas are owning roads. There is no finding as to what freight needs immediate movement. The report recites testimony concerning the length of 'delays' in handling cars, but none on the causes for delays, and contains no conclusions of fact on either subject. It contains a tabulation showing car locations as of May 1, 1947, but no such data for the harvest season. Numerous contentions of the parties are related. The opinions and suggestions of several witnesses as to the effect of increased per diem charges, are recited, but no factual data from experience appears, and no underlying fact-finding whatever upon the point; the ultimate conclusion as to that effect is wholly without factual finding in support. That there are complaints that the existing $ 1.15 and $ 1.25 per diems are unjust and unreasonable in so far as they exceed 95 cents, is told. The flat finding is made that 'The present car shortage is the result of postwar demands upon an inadequate and war-depleted car supply,' a finding which seems to negative the idea that the shortage is due to inefficiency in use. The following findings are made:
'Respondents introduced evidence tending to show that the available car supply is, upon the whole, economically and efficiently utilized. Over-all efficiency is indicated by the following facts: (listing them).'
'There has been a continuing cooperative effort between the shipping public and the railroads for the past several years in the matter of efficiency of car use. The results have been productive of increased efficiency. This can be measured in heavier loading; in more prompt loading and unloading; and the decrease in the number of cars held by industry beyond free time.'
'The more prompt loading and unloading of cars is partially reflected in the faster movement of cars as shown in the records of miles per car per day.'
'Efficient use of freight cars calls for the least empty car mileage consistent with distribution requirements. Evidence of the more direct movement of empty cars from the point where released to the nearest loading territory is found in the trend of average percentage of empty car-miles to total car-miles. The reduction in recent years is shown in the following table: * * * '
Other similar findings are made as to increased efficiency in car use in recent years, but none as to a decrease in that efficiency. The average freight revenue per freight-car day for three named railroads, but for none others, is found. Findings as to the net per diems payable and receivable by the railroads in 1946 are shown in a table. Many railroads in the western sections appear as debit roads
in that tabulation -- including such as the Chicago and North Western, the Chicago, Rock Island and Pacific, the Southern Pacific, the Burlington-Rock Island, the Texas and New Orleans, and others. The report does not indicate the cause of significance of these facts concerning the western roads -- why they are net debit roads, or why an increase in the per diem would benefit them, or, if not, why the credit roads in the crop area should be favored over the debit roads in the same area. Some facts as to the New Haven road are recited.
The insufficiency of the recitations in the report, even when meticulously filtered to collect the facts, is obvious. There are findings which seem to indicate a result opposite to that reached by the Commission, some which are wholly doubtful in effect and meaning, but none which explain or support an order increasing the per diem charge in order to secure greater efficiency in the use of cars. We hold the order invalid upon the second ground, that there are not the requisite underlying findings of fact to support it.
The contention of Commission counsel, and of counsel for the intervening-defendant railroads, that the order involved can be sustained as an order fixing compensation in the wholly remunerative sense, is quickly disposed of. There was no hearing upon that proposal. The notice did not reveal it, and the examiners otherwise defined the issues at the taking of the testimony. There are no findings of fact upon which the order could rest, if upon that theory. Such findings are wholly missing. The court could not possibly tell from the findings whether the order, if it purported to fix only remuneration for car ownership, was fair and reasonable, or was unfair, unreasonable, and arbitrary. No findings of underlying facts which might be used as standards for that determination are in the report. We think it clear that the Commission neither intended to, nor did, rest its order upon that theory, and we doubt its ability to do so.
It follows from all the foregoing that the order of the Commission involved in this action must be set aside, because it is beyond the statutory power of the Commission, and also because, even if the statutory power existed, this order is not supported by the requisite findings of fact. Orders to that effect may be presented by counsel.