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mm’n, 262 U.S. 625, 634 (1923). 170 Moreover, in reviewing orders of the Interstate Commerce Commission, the Court, at least in earlier years, chose to be guided by approximately the same standards it had originally formulated for examining regulations of state commissions. The following excerpt from its holding in ICC v. Union Pacific R.R., 222 U.S. 541, 547–48 (1912) represents an adequate summation of the law as it stood prior to 1920: ‘‘[Q]uestions of fact may be involved in the determination of questions of law, Further, the Court placed various obstacles in the path of the complaining litigant. Thus, not only must a person challenging a rate assume the burden of proof, 164 but he must present a case of ‘‘manifest constitutional invalidity.’’ 165 And, if, notwithstanding this effort, the question of confiscation remains in doubt, no relief will be granted. 166 Moreover, even the Court was inclined to withhold judgement on the application of a rate until the practical effect could be surmised. 167 In the course of time this distinction solidified. Thus, the Court initially adopted the position that it would not disturb findings of fact insofar as these were supported by substantial evidence. For instance, in San Diego Land Company v. National City, 168 the Court declared that after a legislative body had fairly and fully investigated and acted, by fixing what it believed to be reasonable rates, the courts cannot step in and set aside the action due to a different conclusion about the reasonableness of the rates. ‘‘Judicial interference should never occur unless the case presents, clearly and beyond all doubt, such a flagrant attack upon the rights of property under the guise of regulation as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for the public use.’’ And in a similar later case 169 the Court expressed even more clearly its reluctance to reexamine ordinary factual determinations. It is not bound ‘‘to reexamine and weigh all the evidence . . . or to proceed according to . . . [its] independent opinion as to what are proper rates. It is enough if . . . [the Court] cannot say that it was impossible for a fair-minded board to come to the result which was reached.’’ 170 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00036 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1707 so that an order, regular on its face, may be set aside if it appears that the rate is so low as to be confiscatory . . . ; or if the Commission acted so arbitrarily and unjustly as to fix rates contrary to evidence, or without evidence to support it; or if the authority therein involved has been exercised in such an unreasonable manner as to cause it to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power. . . . In determining these mixed questions of law and fact, the Court confines itself to the ultimate question as to whether the Commission acted within its power. It will not consider the expediency or wisdom of the order, or whether, on like testimony, it would have made a similar ruling . . . [The Commission’s] conclusion, of course, is subject to review, but when supported by evidence is accepted as final; not that its decision . . . can be supported by a mere scintilla of proof—but the courts will not examine the facts further than to determine whether there was substantial evidence to sustain the order.’’ See also ICC v. Illinois Cent. R.R., 215 U.S. 452, 470 (1910). 171 253 U.S. 287 (1920). 172 Unlike previous confiscatory rate litigation, which had developed from rulings of lower federal courts in injunctive proceedings, this case reached the Supreme Court by way of appeal from a state appellate tribunal. 253 U.S. at 289. In injunctive proceedings, evidence is freshly introduced whereas in the cases received on appeal from state courts, the evidence is found within the record. 173 Without departing from the ruling previously enunciated in Louisville & Nashville R.R. Co. v. Garrett, 231 U.S. 298 (1913) that the failure of a State to grant a statutory right of judicial appeal from a commission’s regulation is not violative of due process as long as relief is obtainable by a bill in equity for injunction, the Court also held that the alternative remedy of injunction expressly provided by state law did not afford an adequate opportunity for testing a confiscatory rate order. It conceded the principle stressed by the dissenting Justices that ‘‘where a State offers a litigant the choice of two methods of judicial review, of which one is both appropriate and unrestricted, the mere fact that the other which the litigant elects is limited, does not amount to a denial of the constitutional right to a judicial review.’’ 253 U.S. 287, 291, 295 (1920). These standards of review were, however, abruptly rejected by the Court in Ohio Valley Co. v. Ben Avon Borough 171 as being no longer sufficient to satisfy the requirements of due process, ushering in a long period where courts substantively evaluated the reasonableness of rate settings. Although the state court in Ben Avon had in fact reviewed the evidence and ascertained that the state commission’s findings of fact were supported by substantial evidence, 172 it also construed the statute providing for review as denying to state courts ‘‘the power to pass upon the weight of such evidence.’’ Largely on the strength of this interpretation of the applicable state statute, the Court held that when the order of a legislature, or of a commission, prescribing a schedule of maximum future rates is challenged as confiscatory, ‘‘the State must provide a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and facts; otherwise the order is void because in conflict with the due process clause, Fourteenth Amendment.’’ 173 History of the Valuation Question.—For almost fifty years the Court wandered through a maze of conflicting formulas and factors for valuing public service corporation property including VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00037 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1708 AMENDMENT 14—RIGHTS GUARANTEED 174 Smyth v. Ames, 169 U.S. 466, 546–47 (1898) (‘‘fair value’’ necessitated consideration of original cost of construction, permanent improvements, amount and market value of bonds and stock, replacement cost, probable earning capacity, and operating expenses). 175 Various valuation cases emphasized reproduction costs, i.e, the present as compared with the original cost of construction. See, e.g., San Diego Land Co. v. National City, 174 U.S. 739, 757 (1899); San Diego Land & Town Co. v. Jasper, 189 U.S. 439, 443 (1903) 176 Missouri ex rel. Southwestern Bell Tel. Co. v. Public Serv. Comm’n, 262 U.S. 276, 291–92, 302, 306–07 (1923) (Brandeis, J., concurring) (cost includes both operating expenses and capital charges i.e interest for the use of capital, allowance for the risk incurred, funds to attract capital). This method would require ‘‘adoption of the amount prudently invested as the rate base and the amount of the capital charge as the measure of the rate of return.’’ As a method of valuation, the prudent investment theory was not accorded any acceptance until the Depression of the 1930’s. The sharp decline in prices which occurred during this period doubtless contributed to the loss of affection for reproduction costs. In Los Angeles Gas Co. v. Railroad Comm’n, 289 U.S. 287 (1933) and Railroad Comm’n v. Pacific Gas Co., 302 U.S. 388, 399, 405 (1938), the Court upheld respectively a valuation from which reproduction costs had been excluded and another in which historical cost served as the rate base. 177 Knoxville v. Water Co., 212 U.S. 1, 9–10 (1909) (considering depreciation as part of cost). Notwithstanding its early recognition as an allowable item of deduction in determining value, depreciation continued to be the subject of controversy arising out of the difficulty of ascertaining it and of computing annual allowances to cover the same. Indicative of such controversy was the disagreement as to whether annual allowances shall be in such amount as will permit the replacement of equipment at current costs, i.e., present value, or at original cost. In the Hope Gas case, 320 U.S. 591, 606 (1944), the Court reversed United Railways v. West, 280 U.S. 234, 253– 254 (1930), insofar as that holding rejected original cost as the basis of annual depreciation allowances. 178 Des Moines Gas Co. v. Des Moines, 238 U.S. 153, 165 (1915) (finding ‘‘going concern value’’ in an assembled and established plant, doing business and earning money, over one not thus advanced). Franchise value and good will, on the other hand, have been consistently excluded from valuation; the latter presumably because a utility invariably enjoys a monopoly and consumers have no choice in the matter of patronizing it. The latter proposition has been developed in the following cases: Willcox v. Consolidated Gas Co., 212 U.S. 19 (1909); Des Moines Gas Co. v. Des Moines, 238 U.S. 153, 163–64 (1915); Galveston Elec. Co. v. Galveston, 258 U.S. 388 (1922); Los Angeles Gas Co. v. Railroad Comm’n, 289 U.S. 287, 313 (1933). 179 Market Street Ry. v. Railroad Comm’n, 324 U.S. 548, 562, 564 (1945) (where a street-surface railroad had lost all value except for scrap or salvage it was permissible for a commission to consider the price at which the utility offered to sell its property to a citizen); Denver v. Denver Union Water Co., 246 U.S. 178 (1918) (where water company franchise has expired, but where there is no other source of supply, its plant should be valued as actually in use rather than at what the property would bring for some other use in case the city should build its own plant). 180 FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 590 (1942) (‘‘The Constitution [does not] require that the losses of . . . [a] business in one year shall be restored from future earnings by the device of capitalizing the losses and adding them to the rate base on which a fair return and depreciation allowance is to be earned’’). Nor can past losses be used to enhance the value of the property to support a claim that rates for the future are confiscatory. Galveston Elec. Co. v. Galveston, 258 U.S. 388 (1922), any more than profits of the past can be used to sustain confiscatory rates >‘fair value,’’ 174 ‘‘reproduction cost,’’ 175 ‘‘prudent investment’’, 176 ‘‘depreciation’’, 177 ‘‘going concern value and good will’’, 178 ‘‘salvage value,’’ 179 and ‘‘past losses and gains’’ 180 only to emerge therefrom VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00038 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1709 for the future Newton v. Consolidated Gas Co., 258 U.S. 165, 175 (1922); Board of Comm’rs v. New York Tel. Co., 271 U.S. 23, 31–32 (1926). 181 94 U.S. 113 (1877). 182 315 U.S. 575, 586 (1942). 183 320 U.S. 591, 602 (1944). Although this and the previously cited decision arose out of controversies involving the National Gas Act of 1938, the principles laid down therein are believed to be applicable to the review of rate orders of state commissions, except insofar as the latter operate in obedience to laws containing unique standards or procedures. 184 Ohio Valley Co. v. Ben Avon Borough, 253 U.S. 287 (1920). 185 In FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 599 (1942), Justices Black, Douglas, and Murphy, in a concurring opinion, proposed to travel the road all the way back to Munn v. Illinois, and deprive courts of the power to void rates simply because they deem the latter to be unreasonable. In a concurring opinion, in Driscoll v. Edison Co., 307 U.S. 104, 122 (1939), Justice Frankfurter temporarily adopted a similar position; he declared that ‘‘the only relevant function of law . . . [in rate controversies] is to secure observance of those procedural safeguards in the exercise of legislative powers which are the historic foundations of due process.’’ However, in his dissent in FPC v. Hope Natural Gas Co., 320 U.S. 591, 625 (1944), he disassociated himself from this proposal, and asserted that ‘‘it was decided [more than fifty years ago] that the final say under the Constitution lies with the judiciary.’’ 186 FPC v. Hope Natural Gas Co., 320 U.S. 591, 602 (1944). See also Wisconsin v. FPC, 373 U.S. 294, 299, 317, 326 (1963), wherein the Court tentatively approved an ‘‘area rate approach,’’ that is ‘‘the determination of fair prices for gas, based on reasonable financial requirements of the industry, for . . . the various producing areas of the country,’’ and with rates being established on an area basis rather than on an individual company basis. Four dissenters, Justices Clark, Black, Brennan, and Chief Justice Warren, labelled area pricing a ‘‘wild goose chase,’’ and stated that the Commission had acted in an arbitrary and unreasonable manner entirely outside traditional concepts of administrative due process. Area rates were approved in Permian Basin Area Rate Cases, 390 U.S. 747 (1968). in 1944 at a point not very far removed from Munn v. Illinois and its deference to rate-making authorities. 181 By holding in FPC v. Natural Gas Pipeline Co., 182 that the ‘‘Constitution does not bind rate-making bodies to the service of any single formula or combination of formulas,’’ and in FPC v. Hope Natural Gas Co., 183 that ‘‘it is the result reached not the method employed which is controlling, . . . [that] it is not the theory but the impact of the rate order which counts, [and that] if the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the Act is at an end,’’ the Court, in effect, abdicated from the position assumed in the Ben Avon case. 184 Without surrendering the judicial power to declare rates unconstitutional on ground of a substantive deprivation of due process, 185 the Court announced that it would not overturn a result it deemed to be just simply because ‘‘the method employed [by a commission] to reach that result may contain infirmities. . . . [A] Commission’s order does not become suspect by reason of the fact that it is challenged. It is the product of expert judgment which carries a presumption of validity. And he who would upset the rate order . . . carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences.’’ 186 VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00039 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1710 AMENDMENT 14—RIGHTS GUARANTEED The Court recently reaffirmed Hope Natural Gas‘s emphasis on the bottom line: ‘‘[t]he Constitution within broad limits leaves the States free to decide what ratesetting methodology best meets their needs in balancing the interests of the utility and the public.’’ Duquesne Light Co. v. Barasch, 488 U.S. 299, 316 (1989) (rejecting takings challenge to Pennsylvania rule preventing utilities from amortizing costs of canceled nuclear plants). 187 FPC v. Hope Natural Gas Co., 320 U.S. 591, 603 (1944) (citing Chicago & Grand Trunk Ry. v. Wellman, 143 U.S. 339, 345–46 (1892)); Missouri ex rel. Southwestern Bell Tel. Co. v. Public Serv. Comm’n, 262 U.S. 276, 291 (1923). 188 Atlantic Coast Line R.R. v. Corporation Comm’n, 206 U.S. 1, 19 (1907) (citing Chicago, B. & Q. R.R. v. Iowa, 94 U.S. 155 (1877)). See also Prentis v. Atlantic Coast Line, 211 U.S. 210 (1908) ; Denver & R.G. R.R. v. Denver, 250 U.S. 241 (1919). 189 Chicago & G.T. Ry. v. Wellman, 143 U.S. 339, 344 (1892); Mississippi R.R. Comm’n v. Mobile & Ohio R.R., 244 U.S. 388, 391 (1917). See also Missouri Pacific Ry. v. Nebraska, 217 U.S. 196 (1910); Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 415 (1935). 190 Cleveland Electric Ry. v. Cleveland, 204 U.S. 116 (1907). In dispensing with the necessity of observing the old formulas for rate computation, the Court did not articulate any substitute guidance for ascertaining whether a so-called end result is unreasonable. It did intimate that rate-making ‘‘involves a balancing of the investor and consumer interests,’’ which does not, however, ‘‘’insure that the business shall produce net revenues’ . . . . From the investor or company point of view it is important that there be enough revenue not only for operating expenses but also for the capital costs of the business. These include service on the debt and dividends on the stock. . . . By that standard the return to the equity owner should be commensurate with returns on investments in other enterprises having corresponding risks. That return, moreover, should be sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital.’’ 187 Regulation of Public Utilities and Common Carriers In General.—Because of the nature of the business they carry on and the public’s interest in it, public utilities and common carriers are subject to state regulation, whether exerted directly by legislatures or under authority delegated to administrative bodies. 188 But because the property of these entities remains under the full protection of the Constitution, it follows that due process is violated when the state regulates in a manner that infringes the right of ownership in what the Court considers to be an ‘‘arbitrary’’ or ‘‘unreasonable’’ way. 189 Thus, when a street railway company lost its franchise, the city could not simply take possession of its equipment, 190 although it could subject the company to the alternative of accepting an inadequate price for its property or of ceasing oper- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00040 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1711 191 Detroit United Ry. v. Detroit, 255 U.S. 171 (1921). See also Denver v. New York Trust Co., 229 U.S. 123 (1913). 192 Los Angeles v. Los Angeles Gas Corp., 251 U.S. 32 (1919). 193 Newburyport Water Co. v. Newburyport, 193 U.S. 561 (1904). See also Skaneateles Water Co. v. Skaneateles, 184 U.S. 354 (1902); Helena Water Works Co. v. Helena, 195 U.S. 383 (1904); Madera Water Works v. Madera, 228 U.S. 454 (1913). 194 Western Union Tel. Co. v. Richmond, 224 U.S. 160 (1912). 195 Pierce Oil Corp. v. Phoenix Ref. Co., 259 U.S. 125 (1922). 196 Norfolk Turnpike Co. v. Virginia, 225 U.S. 264 (1912) (requiring a turnpike company to suspend tolls until the road is put in good order not a violation of due process of law, notwithstanding the fact that present patronage does not yield revenue sufficient to maintain the road in proper condition ); International Bridge Co. v. New York, 254 U.S. 126 (1920) (in the absence of proof that the addition will not yield a reasonable return, railroad bridge company not deprived of its property when it is ordered to widen its bridge by inclusion of a pathway for pedestrians and a roadway for vehicles.); Chicago, B. & Q. R.R. v. Nebraska, 170 U.S. 57 (1898) (railroads may be required to repair viaduct under which they operate); Chicago, B. & Q. Ry. v. Drainage Comm’n, 200 U.S. 561 (1906) (reconstruct a bridge or provide means for passing water for drainage through their embankment,); Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67 (1915) (drainage requirements); Lake Shore & Mich. So. Ry. v. Clough, 242 U.S. 375 (1917) (drainage requirements) Pacific Gas Co. v. Police Court, 251 U.S. 22 (1919) (requirement to sprinkle street occupied by railroad.). But see Chicago, St. P., Mo. & O. Ry. v. Holmberg, 282 U.S. 162 (1930) (due process violated by requirement that an underground cattle-pass is be constructed, not as a safety measure but as a convenience to farmers). ations and removing its property from the streets. 191 Likewise, a city wanting to establish a lighting system of its own may not remove, without compensation, the fixtures of a lighting company already occupying the streets under a franchise, 192 although a city may compete with a company that has no exclusive charter. 193 However, a municipal ordinance that demanded, as a condition for placing poles and conduits in city streets, that a telegraph company carry the city’s wires free of charge, and that required that conduits be moved at company expense, was constitutional. 194 And, the fact that a State, by mere legislative or administrative fiat, cannot convert a private carrier into a common carrier will not protect a foreign corporation which has elected to enter a State which requires that it operate its local private pipe line as a common carrier. Such foreign corporation is viewed as having waived its constitutional right to be secure against imposition of conditions which amount to a taking of property without due process of law. 195 Compulsory Expenditures: Grade Crossings, and the Like.—Generally, the enforcement of uncompensated obedience to a regulation for the public health and safety is not an unconstitutional taking of property in violation of due process. 196 Thus, where a water company laid its lines on an ungraded street, and the applicable rule at the time of the granting of its charter compelled the company to furnish connections at its own expense to one residing VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00041 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 1712 AMENDMENT 14—RIGHTS GUARANTEED 197 Consumers’ Co. v. Hatch, 224 U.S. 148 (1912). However, if pipe and telephone lines are located on a right of way owned by a pipeline company, the latter cannot, without a denial of due process, be required to relocate such equipment at its own expense Panhandle Eastern Pipeline Co. v. Highway Comm’n, 294 U.S. 613 (1935). 198 New Orleans Gas Co. v. Drainage Comm’n, 197 U.S. 453 (1905). 199 Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935). See also Lehigh Valley R.R. v. Commissioners, 278 U.S. 24, 35 (1928) (upholding imposition of grade crossing costs on a railroad although ‘‘near the line of reasonableness,’’ and reiterating that ‘‘unreasonably extravagant’’ requirements would be struck down). 200 Atchison, T. & S.F. Ry. v. Public Util. Comm’n, 346 U.S. 346, 352 (1953). 201 Atchison, T. & S.F. Ry. v. Public Util. Comm’n, 346 U.S. at 394-95 (1953). See Minneapolis & St. L. R.R. v. Minnesota, 193 U.S. 53 (1904) (obligation to establish stations at places convenient for patrons); Gladson v. Minnesota, 166 U.S. 427 (1897) (obligation to stop all their intrastate trains at county seats); Missouri Pac. Ry. v. Kansas, 216 U.S. 262 (1910) (obligation to run a regular passenger train instead of a mixed passenger and freight train) Chesapeake & Ohio Ry. v. Public Serv. Comm’n, 242 U.S. 603 (1917) (obligation to furnish passenger service on a branch line previously devoted exclusively to carrying freight); Lake Erie & W.R.R. v. Public Util. Comm’n, 249 U.S. 422 (1919) (obligation to restore a siding used principally by a particular plant but available generally as a public track, and to continue, even though not profitable by itself, a sidetrack ); Western & Atlantic R.R. v. Public on such a street, due process is not violated. 197 Or, where a gas company laid its pipes under city streets, it may validly be obligated to assume the cost of moving them to accommodate a municipal drainage system. 198 Or, railroads may be required to help fund the elimination of grade crossings, even though commercial highway users, who make no contribution whatsoever, benefit from such improvements. While the power of the State in this respect is not unlimited, and an ‘‘arbitrary’’ and ‘‘unreasonable’’ imposition on these businesses may be set aside, the Court’s modern approach to substantive due process analysis makes this possibility far less likely than it once was. For instance, a 1935 case invalidated a requirement that railroads share 50% of the cost of grade separation, irrespective of the value of such improvements to the railroad, suggesting that railroads could not be required to subsidize competitive transportation modes. 199 But in 1953 the Court distinguished this case, ruling that the costs of grade separation improvements need not be allocated solely on the basis of benefits that would accrue to railroad property. 200 While the Court cautioned that ‘‘allocation of costs must be fair and reasonable,’’ it was deferential to local governmental decisions, stating that in the exercise of the police power to meet transportation, safety, and convenience needs of a growing community, ‘‘the cost of such improvements may be allocated all to the railroads.’’ Compellable Services.—A State may require that common carriers such as railroads provide services in a manner suitable for the convenience of the communities they serve. 201 Similarly, a pri- VerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00042 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046 AMENDMENT 14—RIGHTS GUARANTEED 1713 Comm’n, 267 U.S. 493 (1925) (same); Alton R.R. v. Illinois Commerce Comm’n, 305 U.S. 548 (1939) (obligation for upkeep of a switch track leading from its main line to industrial plants.). But see Missouri Pacific Ry. v. Nebraska, 217 U.S. 196 (1910) (requirement, without indemnification, to install switches on the application of owners of grain elevators erected on right-of-way held void). 202 United Gas Co. v. Railroad Comm’n, 278 U.S. 300, 308–09 (1929). See also New York ex rel. Woodhaven Gas Light Co. v. Public Serv. Comm’n, 269 U.S. 244 (1925); New York & Queens Gas Co. v. McCall, 245 U.S. 345 (1917). 203 Missouri Pacific Ry. v. Kansas, 216 U.S. 262 (1910); Chesapeake & Ohio Ry. v. Public Serv. Comm’n, 242 U.S. 603 (1917); Fort Smith Traction Co. v. Bourland, 267 U.S. 330 (1925). 204 Chesapeake & Ohio Ry. v. Public Serv. Comm’n, 242 U.S. 603, 607 (1917); Brooks-Scanlon Co. v. Railroad Comm’n, 251 U.S. 396 (1920); Railroad Comm’n v. Eastern Tex. R.R., 264 U.S. 79 (1924); Broad River

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