Section 3 of the Act to Regulate Commerce forbids any undue or
unreasonable preference or advantage in favor of any person,
company, firm, corporation or locality, and what is such undue or
unreasonable preference or advantage is not a question of law, but
of fact.
The courts cannot set aside an order of the Interstate Commerce
Commission in regard to interchange of freight by carriers which
does not contravene any constitutional limitation and is within the
constitutional and statutory authority of that body and is not
unsupported by testimony; such an order is only the exercise of the
authority vested by the law in the Commission.
Although § 3 of the Act to Regulate Commerce remains in its
original form, it must now be read in connection with amendments
to, and subsequent provisions of, that Act by which the term
transportation covers the entire carriage and services in
connection with the receipt and delivery of property transported,
including facilities of a terminal character for delivery. As so
read, § 3 must be construed with a view to carrying out all the
provisions of the Act as it now is, and to make every part of it
effective in accordance with the intention of Congress.
The Interstate Commission has jurisdiction to require an
interstate carrier to receive and transport over its terminals
carload interstate freight from one carrier having a physical
connection with its lines on the same terms on which it performs
such service for other connecting carriers similarly situated.
Such an order is not an appropriation of the terminal property
of the carrier in violation of the due process provision of the
Fifth Amendment, but a regulation of its terminal facilities within
the power properly delegated by Congress.
Grand Trunk Ry. v.
Michigan Railway Commission, 231 U. S. 457,
followed;
Louis. & Nash. R. Co. v. Stock Yards Co.,
212 U. S. 132,
distinguished.
Congress may so control the terminal facilities of a carrier,
and the Interstate Commerce Commission may make such orders, as
will
Page 236 U. S. 352
prevent creation of monopolies within the prohibition and
limitation of the Anti-Trust Act.
United States v. St. Louis
Terminal,
224 U. S. 383.
214 F. 445 affirmed.
The facts, which involve the validity of orders of the
Interstate Commerce Commission regarding the establishment of joint
and through rates to and from, and regulations as to switching cars
at, New Castle, Pennsylvania, by the Pennsylvania Company are
stated in the opinion.
Page 236 U. S. 355
MR. JUSTICE DAY delivered the opinion of the Court.
This case comes here by appeal from an order of the District
Court of the United States for the Western District
Page 236 U. S. 356
of Pennsylvania, denying a motion for interlocutory injunction
against the Interstate Commerce Commission. 214 F. 445.
The Buffalo, Rochester, & Pittsburgh Railway Company,
hereinafter called the Rochester Company, filed its petition before
the Interstate Commerce Commission against the Pennsylvania
Company, averring that in the City of New Castle, Pennsylvania,
there was a physical connection between the railroads jointly
operated by the Rochester Company and the Baltimore & Ohio
Railroad Company, and the terminal facilities of the Pennsylvania
Company at which joint traffic could be properly exchanged, and is
exchanged between the railroad operated by the Rochester Company
and the Baltimore & Ohio Railroad, so that traffic on the lines
owned and operated by the Rochester Company, and from manufactories
and industries reached by the terminal lines of said company in the
City of New Castle, can be delivered to the Pennsylvania Company,
and thus transported to its destination; that there are no joint
routes or through rates in effect between the Rochester Company and
the Pennsylvania Company by which traffic to and from industries
upon the terminal line of the Pennsylvania Company in or near the
City of New Castle may be carried, and although complainant had
frequently requested the Pennsylvania Company to join in
establishing the same, the Pennsylvania Company failed and
neglected so to do; that the Rochester Company, upon interstate
traffic carried by it to the point of physical connection with the
road of the Pennsylvania Company, which traffic is destined to
manufactories or industries upon the lines of the Pennsylvania
Company in or near the City of New Castle, is ready and willing,
and had offered, to pay the Pennsylvania Company its lawful and
proper charges for receiving, carrying, and delivering such
traffic, which charges it makes to other persons or companies for
like services;
Page 236 U. S. 357
that the action of the Pennsylvania Company in declining to
receive, carry, and deliver to the point of physical connection
aforesaid interstate traffic offered by the Rochester Company
subjects said company and shippers of interstate traffic over its
lines, destined to the manufactories and industries upon the line
of the said Pennsylvania Company, to an undue and unreasonable
prejudice and disadvantage, and is in violation of § 3 of the Act
to Regulate Commerce in that it constitutes a failure to afford
reasonable, proper, and equal facilities to complainant with those
afforded to other persons for the interchange of traffic between
their respective lines, and for the receiving, forwarding, and
delivering of property to and from their several lines; that there
are no other through routes and joint rates in effect to which the
Rochester Company and Pennsylvania Company are parties for the
through transportation of interstate traffic carried by the
Rochester Company, destined to the manufactories and industries on
the lines of the Pennsylvania Company, in or near said city, nor
are there any through routes or joint rates in effect between the
companies for interstate traffic originating at the manufactories
and industries on the lines of the Pennsylvania Company in or near
New Castle, destined to points upon the line of the Rochester
Company, or points which are reached by its connections, and that
the failure and refusal of the Pennsylvania Company is forbidden by
§ 15 of the Act to Regulate Commerce. The Rochester Company prayed
for an order commanding the Pennsylvania Company to cease and
desist from such violations of the Act to Regulate Commerce, and
for such orders as might be deemed necessary, and that the
Commission should establish through routes and joint rates on
articles of merchandise tendered to the Pennsylvania Company at the
point of physical connection above set forth for delivery on the
lines of defendant's railroad in or near
Page 236 U. S. 358
the said City of New Castle, and from the industries and
manufactories on the lines of the above-named railroad in or near
the City of New Castle to points on the line of the Rochester
Company or its connections; said joint rates so established to be
the maximum to be charged, and that the Commission prescribe a
division of the same and the terms upon which such through route
can be operated.
The Commission made no order establishing through routes and
joint rates, but held that, inasmuch as the Pennsylvania Company's
refusal to accept from and move to the Rochester Company carload
lots of freight within the switching limits of New Castle, while
performing the service in connection with the said other three
carriers within said switching limits was a discrimination, the
same was undue, unreasonable, and in violation of the Act to
Regulate Commerce. The Commission ordered that the Pennsylvania
Company be required, on or before March 15th, 1914, to cease and
desist from such undue and unreasonable prejudice and disadvantage
as against the Rochester Company, and required the Pennsylvania
Company to establish and maintain rates, regulations, and practices
which would prevent and avoid the aforesaid undue and unreasonable
prejudice and disadvantage for a period of two years. Subsequently,
orders were made making the order effective from a later date,
to-wit, April 15th, 1914.
From the facts found by the Commission it appears that New
Castle is a manufacturing city of much importance, having a
population of about forty thousand people, situated near the center
of the iron, steel, and ore industries of the Mahoning and
Shermango Valleys. The switching limits of New Castle in their
greatest length are about 4 miles in extent, and included therein
are about 100 industries. The Pennsylvania Railroad, the Baltimore
& Ohio Railroad, the Pittsburgh & Lake Erie Railroad, Erie
Railroad, and the Rochester Railroad all reach and
Page 236 U. S. 359
serve New Castle by their several lines of railroad. Each of the
four roads has switching connections with the Pennsylvania Company,
with interchange tracks and terminals within the switching limits.
The Rochester road operates a line of railroad from Rochester and
Buffalo, in the State of New York, to New Castle and Pittsburgh, in
the State of Pennsylvania. It reaches New Castle from the town of
Butler, Pennsylvania, over the rails of the Allegheny & Western
Railroad, which are now jointly used by the Rochester Company and
the Baltimore & Ohio Railroad under a contract between them.
The terminal facilities of the Pennsylvania Company at New Castle
consist of depots, freight stations, yards, team tracks, and side
tracks, together with spur tracks reaching 26 industries within the
switching limits. Within the switching limits there are two points
of connection with the lines of the Pennsylvania Company, and those
jointly used by the Baltimore & Ohio and the Rochester road.
One of these points is at Moravia Street, near the center of the
city, where the Pennsylvania Company has interchange yards with a
capacity for 250 cars. This point is about 1,000 feet from the
freight station of the Rochester road, where the latter road has
two unloading tracks of ten cars' capacity each and a team track of
twelve cars' capacity. The second point of connection is near the
outer yards of the Pennsylvania Company, where there are ample
facilities for interchange of traffic.
The Pennsylvania Company refuses all interchange of carload
freight, whether incoming or outgoing, with the Rochester road
within the switching limits of New Castle, but it does conduct such
interchange with the Erie, the Pittsburgh & Lake Erie, and the
Baltimore & Ohio roads. As to these roads, the Pennsylvania
Company has published its tariffs, and offers to receive,
transport, and deliver to and from the lines of these three
carriers carload shipments to and from about 128 industries within
the
Page 236 U. S. 360
switching limits and immediate vicinity of New Castle at a
charge of $2 per car within the limits and a varying charge with a
maximum of $5 per car without the limits. The industries on the
tracks of the Pennsylvania Company within the switching limits,
which receive carload freight from the Rochester road or which may
desire to ship such freight over the Rochester road to points
beyond New Castle must dray their traffic to and from the depot or
team track of the Rochester Company. Representatives of such
industries testified as to the disadvantage to them resulting from
the refusal of the Pennsylvania Company to perform switching
service on traffic moving over the line of the Rochester
Company.
The Commission found this practice to be an undue and
unreasonable discrimination against the Rochester Company, and made
an order requiring the Pennsylvania Company to desist therefrom.
Commissioner Harlan, dissenting, was disposed to agree to an order
fixing reasonable joint through rates for the use of the terminals
of the Pennsylvania Company and over the rails of the Rochester
Company, but disagreed with the order on the grounds made. The
Pennsylvania Company then filed the bill in this case in the
District Court of the United States for the Western District of
Pennsylvania, and moved for a preliminary injunction, restraining
the enforcement of the order. Answer was filed on behalf of the
United States, and the Interstate Commerce Commission and the
Rochester Company intervened, and, after hearing, the motion was
denied, two judges concurring and one judge dissenting. 214 F. 445.
From this action the Pennsylvania Company appeals, and the case is
now before this Court.
Section 3 of the Act to Regulate Commerce, 24 Stat. 379, 380,
provides:
"That it shall be unlawful for any common carrier subject to the
provisions of this act to make or give any undue
Page 236 U. S. 361
or unreasonable preference or advantage to any particular
person, company, firm, corporation, or locality, or any particular
description of traffic, in any respect whatsoever, or to subject
any particular person, company, firm, corporation, or locality, or
any particular description of traffic, to any undue due or
unreasonable prejudice or disadvantage in any respect
whatsoever."
"Every common carrier subject to the provisions of this act
shall, according to their respective powers, afford all reasonable,
proper, and equal facilities for the interchange of traffic between
their respective lines, and for the receiving, forwarding, and
delivering of passengers and property to and from their several
lines and those connecting therewith, and shall not discriminate in
their rates and charges between such connecting lines, but this
shall not be construed as requiring any such common carrier to give
the use of its tracks or terminal facilities to another carrier
engaged in like business."
This section forbids any undue or unreasonable preference or
advantage in favor of any person, company, firm, corporation, or
locality; what is such undue or unreasonable preference or
advantage is a question not of law, but of fact.
Texas &
Pacific Ry. v. Interstate Commerce Commission, 162 U.
S. 197,
162 U. S. 219;
Interstate Commerce Commission v. Alabama Midland Railway,
168 U. S. 144,
168 U. S. 170.
If the order made by the Commission does not contravene any
constitutional limitation, and is within the constitutional and
statutory authority of that body, and not unsupported by testimony,
it cannot be set aside by the courts, as it is only the exercise of
an authority which the law vests in the Commission.
Interstate
Commerce Commission v. Delaware Lackawanna & Western R.
Co., 220 U. S. 235,
220 U. S. 251;
Los Angeles Switching Case, 234 U.
S. 294,
234 U. S. 311;
Houston & Texas Ry. v. United States, 234 U.
S. 342,
234 U. S.
359.
It is to be remembered that in the aspect which the case
Page 236 U. S. 362
now presents, there is no question as to the terms which the
Commission might prescribe or the compensation which the
Pennsylvania Company should receive for the service to be rendered.
The sole question is whether the Commission exceeded its authority
in requiring the Pennsylvania Company to cease and desist from what
the Commission found to be a discriminatory practice.
In determining whether the Commission exceeded its authority
under § 3 of the Act to Regulate Commerce, it is essential to
consider the character of the service required in the present case.
Section 3 was a part of the original act, and remains unchanged,
but there are certain amendments to the act which are to be read in
connection with § 3 as if they were originally incorporated within
the act.
Blair v. Chicago, 201 U.
S. 400,
201 U. S. 475.
The act as amended June 29th, 1906, 34 Stat. 584, c. 3591, defines
what is meant by common carriers, engaged in transportation by
railroad, which are brought within the control of the act, and a
railroad is defined to include all switches, spurs, tracks, and
terminal facilities of every kind used or necessary in the
transportation of persons or property designated in the act, and
also all freight depots, yards, and grounds used or necessary in
the transportation or delivery of any of said property. Not only
does the act define railroads, but it specifically defines what is
meant by transportation, which is made to include
"cars and other vehicles and all instrumentalities and
facilities of shipment or carriage, irrespective of ownership or of
any contract, express or implied, for the use thereof, and all
services in connection with the receipt, delivery, elevation, and
transfer in transit, ventilation, refrigeration, or icing, storage,
and handling of property transported."
It is made the duty of every carrier
"subject to the provisions of this act to provide and furnish
such transportation, upon reasonable request therefor, and to
establish through routes and just and reasonable rates
applicable
Page 236 U. S. 363
thereto,"
and on June 18, 1910, c. 309, 36 Stat. 545, it was additionally
provided that the carrier should
"provide reasonable facilities for operating such through routes
and to make reasonable rules and regulations with respect to the
exchange, interchange, and return of cars used therein, and for the
operation of such through routes, and providing for reasonable
compensation to those entitled thereto."
See United States v. Union Stock Yard & Transit
Co., 226 U. S. 286, and
as to the character of such commerce,
Illinois Central R. Co.
v. Railroad Commission of Louisiana, decided February 1, 1915,
ante, p.
236 U. S. 157.
It follows that the provisions of § 3 of the act must be read in
connection with the amendments and subsequent provisions, which
show that "transportation," as used in the act, covers the entire
carriage and services in connection with the receipt and delivery
of property transported. There can be no question that, when the
Pennsylvania Railroad used these terminal facilities in connection
with the receipt and delivery of carload freight transported in
interstate traffic, it was subject to the provisions of the act,
and it was obliged as a common carrier in that capacity to afford
all reasonable, proper, and equal facilities for the interchange of
traffic with connecting lines, and for the receiving, forwarding,
and delivering of property to and from its own lines and such
connecting lines, and was obliged not to discriminate in rated and
charges between such connecting lines. By the amendments to the
act, the facilities for delivering freight of a terminal character
are brought within the terms of the transportation to be
regulated.
The cars transported over the Rochester road are brought to a
physical connection with the Pennsylvania road at a point where it
receives carloads of freight from other roads and transports them
over its connecting terminals to points of destination, and at that
point in like
Page 236 U. S. 364
manner forwards over other railroads carloads of freight
transported in interstate commerce and destined for points on such
other connecting railroads.
If the cars of the Rochester Company reaching the point of
connection are drawn by a Baltimore & Ohio locomotive, they are
received and delivered by the Pennsylvania Company over its
terminals.
The Pennsylvania Company insists that these statutory provisions
do not apply to it under the circumstances of this case, and that
the Commission exceeded its authority in requiring it to desist
from what the Commission found to be a discriminatory practice, for
certain reasons which, as we understand them, may be reduced to
three: (a) that, upon the facts shown, there is no discrimination
in a real sense, and certainly none which warrants the making the
order in question; (b) that the order requires the railroad company
to give up the use of its terminals to another company, in
violation of the last clause of § 3, and (c) that the order is a
taking of the railroad company's property in violation of the
protection afforded to it under the Constitution of the United
States, preventing the taking of property without due process of
law, for the contention is that the effect of the order is to
subject the Pennsylvania Railroad's property to the use of the
Rochester Company without compensation.
That there is no discrimination in fact is rested upon the
argument that, with the other three roads, the Pennsylvania
Railroad has certain reciprocal arrangements in the Mahoning and
Shermango Valleys by which these three roads interchange cars with
the Pennsylvania Railroad. It is contended that this, more than the
$2 per car, is the real inducement for the treatment of those
railroads. But, as the Commission found, the amount of traffic
exchanged between these three railroads is of a varying and
differing quantity, and to ascertain the value of such service to
the Pennsylvania Railroad would be a futile undertaking
Page 236 U. S. 365
involving uncertain and speculative considerations as to the
value of this and that service and the varying cost of performing
such service at remote and different places. The statements in the
record, presented to the Commission by the Pennsylvania Company,
show the great difference in service of this character rendered by
the three railroads and by the Pennsylvania Company for the
different roads. For instance, it is shown that, during 1911, the
Baltimore & Ohio switched for the Pennsylvania 69 cars at New
Castle, and in the valleys generally 4,185 cars, while the
Pennsylvania Company switched for the Baltimore & Ohio 8,286
cars in New Castle, and in the valleys generally 8,900 cars. The
Rochester Company switched for the Pennsylvania in the same year
406 cars in New Castle and 3,661 cars to points adjacent thereto.
The Rochester Company moved for the Pennsylvania Company in New
Castle 337 cars more than did the Baltimore & Ohio, and in
gross totals, through and into adjacent regions 187 cars less. The
Pennsylvania Company moved nearly twice as many cars for the
Baltimore & Ohio road as the Baltimore & Ohio did for it.
The government therefore contends with much force that such
reciprocal switching arrangements ought not to justify giving cars
shipped over the Baltimore & Ohio Railroad a preference denied
the cars shipped over the lines of the Rochester road, which cars
enter New Castle on the same track and reach the same junction
points. And, as we have said, the question of compensation is not
here involved, and what compensation the Pennsylvania Company might
require from the Rochester Company is not now to be determined. We
agree with the Commission and the court below that the alleged
reciprocal shipping arrangements do not remove the discriminatory
character of the treatment of the Rochester road.
The objection that the railroad is required to give up the use
of its terminals to another company is perhaps
Page 236 U. S. 366
the principal contention of the Pennsylvania Company, and is
based upon the last clause of the second paragraph of § 3, which
provides that the section shall not be construed as requiring any
common carrier to give the use of its tracks or terminal facilities
to another carrier engaged in like business.
As we have heretofore shown, the act, as it now is, provides
that transportation which must be furnished to all upon equal terms
includes the delivery of freight as part of its transportation.
While § 3 remains part of the act in its original form, it must be
given a reasonable construction with a view to carrying out all the
provisions of the act and to make every part of it effective in
accordance with the intention of Congress.
The majority of the district court thought the present case was
controlled by the case of
Grand Trunk Ry. v. Michigan Railroad
Commission, 231 U. S. 457, and
certainly that case is closely analogous to the present one. In
that case, the Michigan statute, which was enforced by the state
commission as to intrastate commerce, required railroads in that
state to afford reasonable and proper facilities by the
establishment of switching connections between the roads and the
establishment of depots and freight yards for the interchange of
traffic, for the receiving, forwarding, and delivering of
passengers and property to and from other lines and those
connecting therewith, and to transport and deliver without undue
delay and discrimination freight and cars destined to any point on
its own lines or connecting lines, and not to discriminate in rates
and charges between connecting lines. That act, like the federal
act, contained a provision that nothing therein should be construed
as requiring any railroad to give the use of its tracks and
terminal facilities to another railroad engaged in like business.
This Court sustained an order of the Commission requiring the Grand
Trunk Railway to accept freight for other roads at connected
Page 236 U. S. 367
points for shipment in the city of Detroit. In that connection,
this Court stated the question to be (p.
23 U. S.
464):
"Whether, under the statutes of the State of Michigan,
appellants can be compelled to use the tracks it owns and operates
in the City of Detroit for the interchange of intrastate traffic;
or, stating the question more specifically, whether the companies
shall receive cars from another carrier at a junction point or
physical connection with such carrier within the corporate limits
of Detroit for transportation to the team tracks of the companies,
and whether the companies shall allow the use of their team tracks
for cars to be hauled from their team tracks to a junction point or
physical connection with another carrier within such limits, and be
required to haul such cars in either of the above-named movements
or between industrial sidings."
In answering the contention that the service required was not
transportation, but amounted to an appropriation of the terminal
facilities of the Grand Trunk Railway, this Court said (p.
231 U. S.
467):
"The proposition of appellants is, as said by the district
court, that such service and team track service 'are not in a
proper sense transportation, but are essentially distinguishable
therefrom,' or, to put it another way -- and one which expresses
more specially the contention of appellants -- they are mere
conveniences at the destination or initial point of the
transportation, and hence are terminal facilities merely, and their
use is not required to be given to other railroads. The district
court did not regard them in the latter character. After stating
the conditions which exist in Detroit and its extent, the Court
said of them:"
"Such tracks are necessary to prevent the congestion which would
result from requiring all carload freight, both in and out, to be
delivered at the freight depots of the respective roads, and in a
very proper sense are shipping stations."
"The Court concluded that the services were
Page 236 U. S. 368
transportation, and that the statute of the state validly
empowered the Commission"
"to require local transportation by a railroad between its own
shipping stations within a city, whether such plurality of shipping
stations has been voluntarily established by the railroad, as here,
or has been required by the Commission under its lawful powers, and
provided such transportation is for such substantial distance and
of such a character as reasonably to require a railroad haul, as
distinguished from other means of carriage."
"The Court further said:"
"It is clear that a statute validly may, and the statutes we are
considering do, authorize the employment of such depots, side
tracks, and team tracks of a railroad for transporting carload
freight to and from the junction of such road with another road as
a substantial part of a continuous transportation routing, where
such junction is outside the city limits."
"And it was remarked that the fact that the freight movement
begins and ends within the limits of a city does not take from it
its character 'of an actual transportation between two termini,'
the other conditions obtaining. We concur in the conclusion of the
Court."
After describing the extent of the City of Detroit to be about
22 miles, and its population about 500,000, the Court held that it
was competent for the state commission to require transportation
between points in that city, as the beginning and destination of
traffic, and that to call the service necessary to such movement a
taking of terminals was misleading, and that the statute involved
was a proper regulation of the business of appellants, and not an
appropriation of their terminal facilities for the use and benefit
of another road.
In the present case, we think there is no requirement in the
order of the Commission amounting to a compulsory taking of the use
of the terminals of the Pennsylvania Company by another road,
within the inhibition of this clause of § 3. The order gives the
Rochester road no right
Page 236 U. S. 369
to run its cars over the terminals of the Pennsylvania Company
or to use or occupy its station or depots for purposes of its own.
There is no requirement that the Rochester Company be permitted to
store their cars in the yards of the Pennsylvania Company, or to
make use of its freight houses or other facilities, but simply that
the Pennsylvania Company receive and transport the cars of the
Rochester Company over its terminals at New Castle in the same
manner and with the same facilities that it affords to other
railroads connecting with the Pennsylvania railroad at the same
point.
The third and last objection is that the effect of the order of
the Commission is to appropriate the property of the Pennsylvania
Railroad without compensation, to the use of the Rochester Company,
in violation of the Constitution of the United States. Certainly
the railroad cannot maintain, in view of the provisions of the
statute to which we have referred, that these terminal facilities
are exempt from public regulation and under all circumstances
subject to its own control, to be dealt with in such manner as it
may see fit. This Court recognized, in the case of
United
States v. Terminal R. Ass'n, 224 U. S. 383,
that terminal facilities might be so used as to create monopolies,
which it was within the power of Congress to control -- a power
which it might exercise within the prohibitions and limitations of
the Sherman act. So, in the present case, all that the order
requires the Pennsylvania Company to do is to receive and transport
over its terminals by its own motive power, for the Rochester
Company, as it does for other companies, similarly situated,
carload freight in the course of interstate transportation.
To support the constitutional argument in this connection,
reliance is had upon the decision of this Court in
Louisville
&c. R. Co. v. Stock Yards Co., 212 U.
S. 132. That case was also relied upon to support a like
argument in the
Grand Trunk case,
supra, and in
the opinion of the
Page 236 U. S. 370
Court was analyzed and its application to the situation then
presented denied. An examination of the
Louisville case
shows that it was unlike the one now presented. The Louisville
& Nashville Company and the Southern Railway Company were
competing companies for the livestock business at Louisville. Each
maintained its own stockyards, the yard of the Louisville &
Nashville Company being known as the Bourbon Stock Yard and that of
the Southern Railway Company as the Central Stock Yard.
See118 F. 113, and the same case in this Court in
192 U. S. 192 U.S.
568. The railway company was ordered in the state court to receive
at its stations in Kentucky, and to bill, transport, transfer,
switch, and deliver in the customary way at some point of physical
connection with the tracks of the Southern Railway, and
particularly at one described, all livestock or other freight
consigned to the Central Stock Yards or to persons doing business
there; to transfer, switch, and deliver to the Southern Railway at
the said point of connection any and all livestock or other freight
coming over its lines in Kentucky consigned to the Central Stock
Yards or persons doing business there, to receive at the same point
and to transport, switch, transfer, and deliver all livestock
consigned to anyone at the Bourbon Stock Yards the shipment of
which originates at the Central Stock Yards, and was required,
whenever requested by the consignor, consignee, or owner of the
stock at any of the stations, and particularly at its break-up
yards in South Louisville, Kentucky, to recognize their right to
change the destination, and upon payment of the whole freight rate
and proper presentation of the bill of lading, duly indorsed, to
change the destination and deliver at a point of connection with
the Southern Railway tracks for delivery by the latter to the
Central Stock Yards. This judgment of the state court was reversed
in this Court, among other things, the Court saying (212 U.S., p.
212 U. S.
145):
Page 236 U. S. 371
"If the principle is sound, every road into Louisville, by
making a physical connection with the Louisville & Nashville,
can get the use of its costly terminals and make it do the
switching necessary to that end upon simply paying for the service
of carriage. The duty of a carrier to accept goods tendered at its
station does not extend to the acceptance of cars offered to it at
an arbitrary point near its terminus by a competing road, for the
purpose of reaching and using its terminal station. To require such
an acceptance from a railroad is to take its property in a very
effective sense, and cannot be justified unless the railroad holds
that property subject to greater liabilities than those incident to
its calling alone."
As this Court said in the
Grand Trunk case, the case
turned upon the point that the roads were competitive, and the
point of delivery an arbitrary one, and that thereby the terminal
station of one company was required to be shared with the other. In
that connection, it used language applicable to the present
situation (231 U.S., p.
231 U. S. 472)
:
"In the case at bar, a shipper is contesting for the right, as a
part of transportation. The order of the Commission was a
recognition of the right, and legally so. Considering the theater
of the movements, the facilities for them are no more terminal or
switching facilities than the depots, side tracks, and main lines
are terminal facilities in a less densely populated district. A
precise distinction between facilities can neither be expressed nor
enforced. Transportation is the business of railroads, and when
that business may be regulated and to what extent regulated may
depend upon circumstances."
So here, there is no attempt to appropriate the terminals of the
Pennsylvania Railroad to the use of the Rochester Company. What is
here accomplished is only that the same transportation facilities
which are afforded to the shipments brought to the point of
connection over tracks used in common by the Baltimore & Ohio
Railroad and
Page 236 U. S. 372
the Rochester Company shall be rendered to the Rochester Company
as are given to the Baltimore & Ohio Company under precisely
the same circumstances of connection for the transportation of
interstate traffic. All that the Commission ordered was that the
Company desist from the discriminatory practice here involved, and,
in so doing, we think it exceeded neither its statutory authority
nor any constitutional limitation, and that the district court was
right in so determining.
It follows that the order denying the application for temporary
injunction was properly made, and the judgment must be
Affirmed.
MR. CHIEF JUSTICE WHITE, dissenting:
The Court now holds that this controversy involves merely a
switching privilege and the duty of one railroad not to refuse such
privilege to another, or, at all events, if it permits it to one,
to allow it to other roads on terms of equality. By a necessary
inference, therefore, the decision now made is concerned alone with
that subject, and does not in any degree whatever, as a matter of
law, involve the right of one railroad company to compel another to
permit it to share in its terminal facilities. If I could bring my
mind to understand the facts of the controversy as they are now
appreciated by the Court, there would be no difficulty whatever on
my part in accepting the legal principle which is applied to them.
But the difficulty which I have is in the premise of fact upon
which the case is decided. In other words, I have found it
impossible to escape the conclusion that, instead of being one
concerning a mere switching privilege, the case is really one
involving the using of terminal facilities. Differing only
therefore as to an appreciation of the facts, I am very reluctant
to express a dissent -- a reluctance which is greatly increased by
the consideration that the view
Page 236 U. S. 373
of the facts now taken by the Court is the one which was adopted
by the court below, and which was stated by the Interstate Commerce
Commission. Strong, however, as is the admonition resulting from
this situation, it is not strong enough to overcome the force of my
conviction as to what the case really concerns, and to overcome the
belief that it is my duty at least to state the fact of my
dissent.
MR. JUSTICE McREYNOLDS took no part in the consideration and
decision of this case.