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December 4, 1969

ALABAMA POWER COMPANY et al., Plaintiffs,
UNITED STATES of America et al., Defendants

The opinion of the court was delivered by: CORCORAN

This action was instituted by several groups of shippers to enjoin, annul and set aside certain rate increase orders of the Interstate Commerce Commission entered November 26, 1968 and January 9, 1969 in Ex Parte No. 259, Increased Freight Rates, 1968. *fn1" These orders permitted Class I railroads of the United States to effect a general increase in their freight rates and charges to offset the increase in expenses which had occurred in the 1967-1968 period.

The Secretary of Agriculture intervened as a party plaintiff and several Class I railroads intervened as party defendants.

 In substance the plaintiff shippers contend that the ultimate findings of the Commission as to the need for increased railroad revenue were not based upon adequate subsidiary findings and were not supported by substantial evidence on the record since the Commission failed to determine,

 'how much revenue the railroads would need: (1) for operating expenses, rents and taxes; (2) for capital improvements including (a) the revenues needed to pay for improvements to be financed by internally generated funds, and (b) the additional revenues needed to enable them to obtain the funds required for externally financed improvements; and (3) the amounts needed for debt service and dividends. It should also have looked at and determined the railroads' future needs and not simply their present requirements.' *fn2"

 The plaintiffs further contend that the Commission ignored the differences in the financial needs of the railroads in the three railroad districts and failed to require the railroads to present evidence of the unit cost of performing transportation services.

 The intervening Secretary of Agriculture argued that the Commission did not hold the railroads to the recently announced new standard of proof which it had expressed in Ex Parte No. 256, Increased Freight Rates, 1967, *fn3" and further that the Commission did not consider the effect of the rate increases upon the movement of traffic.

 The defendant railroads submitted that the orders of the Commission, being permissive general increase orders, were non-reviewable, relying on Algoma Coal and Coke Co. v. United States. *fn4" They further submitted that even if the orders were held to be reviewable, the I.C.C. had observed the required statutory standards and the orders of the Commission had contained adequate findings supported by substantial evidence.

 The I.C.C. did not join in the jurisdictional objection proffered by the railroads but chose to defend its action on the merits, contending that it had made the requisite findings which were supported by substantial evidence.

 The Court concludes that it lacks jurisdiction to review the questioned Commission orders, and that it is unnecessary, therefore, to reach the issues raised by the plaintiff shippers and the intervening Secretary of Agriculture.

 It is to be noted that the rates which have become effective under the I.C.C. orders are permissive and not mandatory, and that the Commission in its Ultimate Conclusions and Findings in Ex Parte 259 declared in No. 15:

 'Our findings as to justness and reasonableness, which are based upon all of the evidence before us, including typical evidence as to rates and charges in and between all territories, will apply to the general bases of rates and charges, and will not preclude interested parties from bringing any maladjustments to our attention for correction. The increased freight rates and charges authorized herein are not considered as prescribed within the meaning of the decision in Arizona Grocery Co. v. Atchison, T. & S.F. Ry. Co., 284 U.S. 370 (52 S. Ct. 183, 76 L. Ed. 348), and will, in all respects, be subject to complaint and investigation as provided by the act.' 332 I.C.C. 792.

 The foregoing declaration assures any aggrieved party, such as the plaintiffs herein, the opportunity to challenge any particular rates which affect them under the procedures provided in Section 13 of the I.C.C. Act, 49 U.S.C.A. § 13.

 Under such circumstances it is the Court's opinion that this case should be governed by Algoma. *fn5" In that case District Judge Chesnut, writing for a three-judge court, *fn6" noted:

 'The position taken by the plaintiffs seems to misconceive the real nature and effect of the Commission proceeding. They take the view that what the Commission did in effect was to determine what would be just and reasonable rates for particular traffic ...

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