Under § 7 of the Act of June 18, 1910, 36 Stat. 539, 547, c.
309, the Interstate Commerce Commission cannot require a main trunk
road to make switch connections with a road which is not actually
at the time a lateral branch road.
In this case,
held that a railroad parallel with a main
trunk line and operated by a traction company as an independent
venture, and not as a mere feeder, was not a lateral branch
railroad within the meaning of § 7 of the Act of June 18, 1910.
An order to maintain through rates incident to a requirement to
make switch connections is incidental thereto, and falls with
it.
Quaere whether parties are bound in a higher court by
findings based on specific investigations made by the lower
tribunal without notice.
See Oregon R. Co. v. Fairchild,
224 U. S. 510,
224 U. S.
525.
195 F. 962 affirmed.
Page 226 U. S. 15
The facts, which involve the jurisdiction of the Interstate
Commerce Commission to require carriers to establish switch
connections, are stated in the opinion.
Page 226 U. S. 17
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit to set aside an order of the Interstate Commerce
Commission, directing the appellees to establish switch connections
with the road of the appellant, and also through routes to and from
points on that road.
Page 226 U. S. 18
20 I.C.C. 486. The Commerce Court made a decree as prayed (195
F. 962), and an appeal was taken to this Court. The facts material
to our decision are as follows: the Baltimore & Ohio
Southwestern Railroad and the Norfolk & Western Railway are
trunk lines of steam railroads running east and west across the
State of Ohio. After almost touching each other at Norwood, a
suburb of Cincinnati, they draw apart, the former in a northerly,
the latter in a southerly, direction, but come together again at
Hillsboro, about 53 miles further to the east. The line of the
Traction Company is an "interurban" electric railway, for
passengers and some freight, running under a state charter between
Norwood and Hillsboro, through the middle of the diamond enclosed
by the steam roads, and authorized to go on to Columbus. For a
number of miles easterly from Norwood to Stonelick, near Boston,
the last-mentioned road is very near and almost parallel to the
tracks of one or the other of the steam roads, as it is again for
the last five miles before reaching Hillsboro. In the intervening
space, between Boston and Dodsonville, the towns and villages on
the electric line are from five to ten or twelve miles by wagon
distant from the nearest station on one of the steam roads. The
Traction Company applied to the Commission for switch connections,
and they were ordered, as we have said.
Some technical objections were raised, but the substantial
question is whether the Traction Company is a "lateral branch line
of railroad" within the meaning of the first section of the Act to
Regulate Commerce, amended by Act of June 18, 1910, c. 309, § 7, 36
Stat. 539, 547. That section requires carriers subject to the act
to establish switch connections with such lines on certain
conditions; and, as amended, permits owners of such lines as well
as shippers to make complaint to the Commission in case of the
carriers' failure upon written application, and authorizes the
Commission to hear, investigate, and
Page 226 U. S. 19
determine whether the conditions exist, and to make an order
directing the carrier to comply with the act. It will be seen
without much argument that, unless the Traction Company is a
lateral, branch line of railroad, the trunk line carriers, the
appellees, are not subject to the requirement of the statute so far
as the Traction Company is concerned.
The words "lateral branch line" do not refer to what the
applicant may become or be made by order of the Commission, but to
what it already is when it applies. The power of the Commission
does not extend to ordering a connection wherever it sees fit, but
is limited to a certain and somewhat narrow class of lines. The
most obvious examples of such lines are those that are dependent
upon and incident to the main line, feeders, such as may be built
from mines or forests to bring coal, ore, or lumber to the main
line for shipment. We agree with the Commerce Court that the
Traction Company is not within this class. It is an independent
venture, in its general course parallel to, more or less competing
with, the steam roads, and working on a different plan. Presumably
and so far as appears, it was built and would have been run without
regard to the existence of the steam roads. The cases cited on
behalf of the appellants as to the power of railroad companies to
construct branch roads under their charter do not apply. There, the
determination of the company fixes the character of the branch; it
builds the branch from the beginning as incident to the purposes of
the company. But here, as we have said, this determination of the
Commission that the applicants shall be a branch is not enough; the
applicant must be a branch before it applies. That is the absolute
and reasonable condition. That some shippers would be accommodated
by a switch connection is not enough.
The order to maintain through routes was incident to the
requirement of switch connections, and falls with it.
Page 226 U. S. 20
We understand that it was based on the assumption that the
connections were to be made, and therefore do not go into the
question of power under § 15.
It is unnecessary to consider objections to the conclusion of
the Commission that it was safe and reasonably practicable, etc.,
to establish the switch. We remark that it is stated in the
Commissioner's report that they base their conclusion more largely
upon their own investigation than upon the testimony of the
witnesses. It would be a very strong proposition to say that the
parties were bound in the higher courts by a finding based on
specific investigations made in the case without notice to them.
See Washington ex Rel. Oregon R. & Nav. Co. v.
Fairchild, 224 U. S. 510,
224 U. S. 525.
Such an investigation is quite different from a view by a jury,
taken with notice and subject to the order of a court, and
different again from the question of the right of the Commission to
take notice of results reached by it in other cases, when its doing
so is made to appear in the record, and the facts thus noticed are
specified, so that matters of law are saved.
Decree affirmed.