Under circumstances which induce the court to say that there
could have been no purpose to discriminate against the Tennessee
Central, the two appellant railroad companies planned and matured
an arrangement for the interchange of traffic at Nashville which,
stated generally, took the following form,
viz: the
terminal, connecting their main lines and consisting of tracks,
yards, depots, and other railroad property, owned in part by the
appellant railroad companies in severalty, and in part held as to
title by appellant Terminal Company, but leased by it to them in
joint tenure, was placed under the management of an unincorporated
organization called the "Nashville Terminals," along with
additional connecting trackage contributed by the two railroads
from their respective main and side tracks. The "Nashville
Terminals," under control of the two appellant railroad companies,
maintained and operated this collective property, and thus served,
within the switching limits so constituted, to interchange the
traffic of the two roads at Nashville. The total expense of
maintenance and operation was apportioned between the two
constituent railroad companies on the basis of the total number of
cars and locomotives handled for each, and no switching charges
were made against either. The appellant Terminal Company was, in
origin, a creature of the other two appellants; the property which
it held in and about the terminal was obtained directly or
indirectly through their financial aid, and the Louisville &
Nashville owned all its stock, as well as 71% of the stock of the
Nashville & Chattanooga. The Interstate Commerce Commission
directed appellants to abstain from refusing to switch interstate
competitive traffic for the Tennessee Central on the same terms as
noncompetitive, while exchanging both kinds on the same terms for
each other, and ordered them to establish rates for the switching
of all interstate traffic for the Tennessee Central the same as
they contemporaneously maintained between themselves.
Page 242 U. S. 61
Held, under these circumstances, as more fully
developed in the opinion:
(1) That, for all practical purposes, the effect of the
arrangement was to make the two appellant railroad companies the
joint owners of the terminal.
(2) That, by § 3 of the Interstate Commerce Act, they were as
such joint owners protected in the same degree as would be an owner
in severalty from being required to give the use of their terminal
facilities to another carrier engaged in like business.
(3) That their mere refusal to switch for the Tennessee Central
would not be an unlawful discrimination.
(4) That the method of switching through a single agency, as
described, did not involve unlawful discrimination against that
railroad.
(5) That, consequently, the order of the Commission was
erroneous, and must be enjoined.
(6) But that appellants might not lawfully discriminate between
competitive and noncompetitive goods, and, so long as they received
the latter, the Commission could require them to receive the former
upon being paid reasonable compensation, taking into account their
pecuniary outlay on the terminal.
227 F. 25;
id., 273, reversed.
The case is stated in the opinion.
Page 242 U. S. 69
MR. JUSTICE HOLMES delivered the opinion of the court.
This is an appeal from a decree, made by three judges sitting in
the district court, which denied a preliminary injunction against
the enforcement of an order of the Interstate Commerce Commission
and dismissed the appellants' petition. 227 F. 258,
id.
273.
See 33 I.C.C. 76, for the report of the Interstate
Commerce Commission. The order complained of required the
appellants, the Louisville & Nashville Railroad Company, the
Nashville, Chattanooga, & St. Louis Railway, and the Louisville
& Nashville Terminal Company to desist and abstain
"from maintaining a practice whereby they refuse to switch
interstate competitive traffic to and from the tracks of the
Tennessee Central Railroad Company at Nashville, Tennessee, on the
same terms as interstate noncompetitive traffic, while
interchanging both kinds of said traffic on the same terms with
each other, as said practice is found by the Commission in its said
report to be unjustly discriminatory."
It was further ordered:
"That the Louisville & Nashville Railroad Company,
Nashville, Chattanooga, & St. Louis Railway, and Louisville
& Nashville Terminal Company be, and they are hereby, notified
and required to establish, on or before May 1, 1915, upon notice to
the Interstate Commerce Commission and to the general public by not
less than thirty days' filing and posting in the manner prescribed
in § 6 of the Act to Regulate Commerce, and thereafter to maintain
and apply to the switching of interstate traffic to and from
the
Page 242 U. S. 70
tracks of the Tennessee Central Railroad Company at said
Nashville, rates and charges which shall not be different than they
contemporaneously maintain with respect to similar shipments to and
from their respective tracks in said city, as said relation is
found by the Commission in its said report to be
nondiscriminatory."
The appellants contend as matter of law that the relations
between them exclude any charge of discrimination that is based
only upon a refusal to extend to the Tennessee Central road the
advantages that they enjoy.
The order is based upon discrimination, and is limited by the
duration of the interchange between the appellants found to be
discriminatory, and the question argued by the appellants is the
only question in the case. Therefore it is necessary to consider
relations between the appealing railroads that were left on one
side in
Louisville & Nashville R. Co. v. United
States, 238 U. S. 1,
238 U. S. 18.
The Louisville & Nashville traverses Nashville from north to
south, the Nashville & Chattanooga from west to southeast, the
Tennessee Central from northwest to east. They all are competitors
for Nashville traffic. In 1872, contemplating a possible Union
Station, the Louisville & Nashville acquired trackage rights
from the Nashville & Chattanooga that connected its northern
and southern terminals in the city (previously separate), and the
terminal of the Nashville & Chattanooga. It now owns 71 percent
of the stock of the latter. In 1893, these two roads caused the
appellant Terminal Company to be organized under the general laws
of Tennessee, with the right to let its property. The Louisville
& Nashville owns all the stock of this company. In 1896, the
two roads respectively let to the Terminal Company their several
properties in the neighborhood of the original depot grounds of the
Nashville & Chattanooga for 999 years, and shortly afterwards
the Terminal made what is termed
Page 242 U. S. 71
a lease of the same, and subsequently acquired property to the
two roads jointly for a like term. It covenanted to construct all
necessary passenger and freight buildings, tracks, and terminal
facilities, the roads to pay annually as rental four percent of the
actual cost, and to keep the properties in repair. The Terminal
Company then made a contract with the city for the construction of
a Union Station, the two roads guarantying the performance, and the
construction was completed in 1900, the tracks connecting with
those of the two roads, but not with those of the Tennessee
Central. The Terminal Company, as part of the improvements,
purchased large additional properties, the two roads advancing the
funds, and the company executing a mortgage for $3,000,000
guaranteed by the roads. $2,535,000 of the bonds were issued and
the proceeds used to repay the roads.
On August 15, 1900, the two roads at that time being the only
two roads entering Nashville, made the arrangement under which they
since have operated. They made an unincorporated organization
called the Nashville Terminals which was to maintain and operate
the property let to the two roads jointly by the Nashville Terminal
Company and also 8.10 miles of main track and 23.80 miles of side
track contributed by the Louisville & Nashville, and 12.15
miles of main and 26.37 miles of side track contributed by the
Nashville & Chattanooga. The agreement between the roads
provided a board of control consisting of a superintendent and the
general managers of the two roads, the superintendent having the
immediate control and appointing under officers, etc. The total
expense of maintenance and operation is apportioned monthly between
the two roads on the basis of the total number of cars and
locomotives handled for each. There is no switching charge to or
from locations on tracks of the Nashville Terminals within the
switching limits on freight from or to Nashville over either road.
The Tennessee
Page 242 U. S. 72
Central tracks now connect with those of the Nashville &
Chattanooga at Shops Junction, in the western section of the city,
within the switching limits, and with those of the Louisville &
Nashville at Vine Hill, outside the switching limits, and just
outside the city on the south.
It should be added that, in December, 1902, a further agreement
was made purporting to modify the lease to the railroads jointly by
excluding from it the property that came from them respectively,
and remitting the roads to their several titles as they stood
before the lease, subject only to the mortgage, with some other
changes that need not be mentioned. This partial change from joint
tenancy back to several titles does not affect the substantial
equality of the contribution of the two roads, and the joint tenure
of the considerable property purchased by the Terminal Company was
left unchanged.
Another matter that seems immaterial to the case before us is
that, since the connection between the Tennessee Central and the
appellant roads, the latter have interchanged noncompetitive
traffic with the former, but the Louisville & Nashville has
refused to switch competitive traffic and coal except at its local
rates, and the Nashville & Chattanooga has refused to switch it
at all. The switching of coal was dealt with by this Court in
Louisville & Nashville R. Co. v. United States,
238 U. S. 1. But the
case now before us is not concerned with the effect of the carriers
having thrown the terminals open to many branches of traffic. 238
U.S.
238 U. S. 18. It
arises only upon the question of the discrimination supposed to
arise from the appellants' relations to each other, as we have
explained -- a question grazed but not hit by the decision in 238
U.S.
See p.
238 U. S. 19.
If the intent of the parties or purpose of the arrangement was
material in a case like this, obviously there was none to
discriminate against the Tennessee Central road. That
Page 242 U. S. 73
road did not enter Nashville when the plan was formed, and the
two appellants had a common interest, although competitors -- an
interest that also was public, and in which the City of Nashville
shared. By § 3 of the Act to Regulate Commerce as it now stands,
the act
"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."
Therefore, if either carrier owned and used this terminal alone,
it could not be found to discriminate against the Tennessee Central
by merely refusing to switch for it -- that is, to move a car to or
from a final or starting point from or to a point of interchange.
We conceive that what is true of one owner would be equally true of
two joint owners, and if we are right, the question is narrowed to
whether that is not, for all practical purposes, the position in
which the appellants stand. They do still hold jointly a
considerable portion of the terminals, purchased with their funds.
They manage the terminals as a whole, and, in short, deal with them
in the same way that they would if their title was joint in every
part. Of course, they do not own their respective original tracks
jointly, and it is matter for appreciation that perhaps defies more
precise argument whether the change back to a several tenure of
those tracks changed the rights of the parties. We cannot see in
this modification of the paper title any change material to the
point in hand. Neither road is paid for the use of its tracks, but
the severally owned and the jointly held are brought into a single
whole by substantially equal contributions and are used by each as
occasion requires.
The fact principally relied upon to uphold the order of the
Commission is that, instead of each road's doing its own switching
over the terminals used in common, they switch jointly, and it is
said that therefore each is doing for the other a service that it
cannot refuse to a third. We cannot believe that the rights to
their own terminals, reserved by
Page 242 U. S. 74
the law, are to be defeated by such a distinction. We take it
that a several use by the roads for this purpose would open no door
to a third road. If the title were strictly joint throughout in the
two roads, we can see no ground for prejudice in the adoption of
the more economical method of a single agency for both, each paying
substantially as it would if it did its own work alone. But, as we
have indicated, a large part of the terminals is joint property in
substance, and the whole is held and used as one concern. What is
done seems to us not reciprocal switching, but the use of a joint
terminal in the natural and practical way. It is objected that,
upon this view, a way is opened to get beyond the reach of the
statute and the Commission. But the very meaning of a line in the
law is that right and wrong touch each other, and that anyone may
get as close to the line as he can if he keeps on the right side.
And further, the distinction seems pretty plain between a
bona
fide joint ownership or arrangement so nearly approaching
joint ownership as this, and the grant of facilities for the
interchange of traffic that should be extended to others on equal
terms. The joint outlay of the two roads has produced much more
than a switching arrangement; it has produced a common and peculiar
interest in the station and tracks even when the latter are not
jointly owned. In our opinion, the order was not warranted by the
law, but, in overturning it upon the single point discussed, we do
so without prejudice to the Commission's making orders to prevent
the appellants from discriminating between competitive and
noncompetitive goods, so long as they open their doors to the
latter, the appellants being entitled to reasonable compensation,
taking into account the expense of the terminal that they have
built and paid for.
Decree reversed. Injunction to issue, without prejudice to
further orders by the Interstate Commerce Commission as stated in
the opinion.
Page 242 U. S. 75
MR. JUSTICE PITNEY, with whom concurred MR. JUSTICE DAY, MR.
JUSTICE BRANDEIS, and MR. JUSTICE CLARKE, dissenting:
I am unable to concur in the opinion of the Court, and, in view
of the far-reaching effect of the decision upon the commercial
interests of the country, deem it a duty to set forth the grounds
of my dissent.
The Interstate Commerce Commission found as matter of fact (33
I.C.C. 76, 84):
"Defendants [the two railroad companies, now appellants]
unquestionably interchange traffic with each other and without
distinction between competitive and noncompetitive traffic. The
cars of both roads are moved over the individually owned terminal
tracks of the other to and from industries on the other, and both
lines are rendered equally available to industries located
exclusively on one. The movement, it is true, is not performed
immediately by the road over whose terminal tracks it is performed,
but neither is it performed immediately by the road whose cars are
moved. It is performed by a joint agent for both roads, and that
being so, we are of the opinion that the arrangement is essentially
the same as a reciprocal switching arrangement, and accordingly
constitutes a facility for the interchange of traffic between, and
for receiving, forwarding, and delivering property to and from
defendants' respective lines, within the meaning of the second
paragraph of § 3 of the act [Interstate Commerce Act]. . . . We
cannot agree with defendants' contention that they have merely
exchanged trackage rights. But, even if they have, we think the
term 'facility,' as used in § 3 of the act, also includes
reciprocal trackage rights over terminal tracks, the consequences
and advantages to shippers being identical with those accruing from
reciprocal switching arrangements."
The district court, three judges sitting (227 Fed.
Page 242 U. S. 76
258, 269), after careful consideration, reached the following
conclusions:
"The operation jointly carried on by the Louisville &
Nashville and the Nashville & Chattanooga under the Terminals
agreement is not a mere exchange of trackage rights to and from
industries on their respective lines at Nashville, under which each
does all of its own switching at Nashville and neither switches for
the other. It is, on the contrary, in substance and effect, an
arrangement under which the entire switching service for each
railroad over the joint and separately owned tracks is performed
jointly by both, operating as principals through the Terminals as
their joint agent, each railroad, as one of such joint principals,
hence performing through such agency switching service for both
itself and the other railroad. . . . And, viewed in its fundamental
aspect, and considered with reference to its ultimate effect, we
entirely concur in the conclusion of the Commission that such joint
switching operation 'is essentially the same as a reciprocal
switching arrangement,' constituting a facility for the interchange
of traffic between the lines of the two railroads, within the
meaning of the second paragraph of § 3 of the Interstate Commerce
Act. That each railroad does not separately switch for the other,
but that such switching operations are carried on jointly, is not,
in our opinion, material. If it were, all reciprocal switching
operations carried on by two railroads at any connecting point of
several carriers could be easily put beyond the reach of the act,
and its remedial purpose defeated, by the simple device of
employing a joint agency to do such reciprocal switching. The
controlling test of the statute, however, lies in the nature of the
work done, rather than in the particular device employed or the
names applied to those engaged in it."
With these views I agree. Elaborate argument is made in behalf
of appellants in the effort to show that the method of operating
the Nashville Terminals is not "reciprocal
Page 242 U. S. 77
switching" within a certain narrow definition of that term. This
is an immaterial point, the real question being whether it
constitutes a facility for the interchange of traffic between the
respective lines of appellants, and for the receiving, forwarding,
and delivering of property between connecting lines, within the
meaning of § 3 of the Interstate Commerce Act (c. 104, 24 Stat.
380), so that it must be rendered to the patrons of the Tennessee
Central upon equal terms with those of the Louisville &
Nashville and the Nashville & Chattanooga. I cannot doubt that
it bears this character.
The section reads as follows:
"Sec. 3. That it shall be unlawful for any common carrier
subject to the provisions of this act to make or give any undue 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 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."
It is clear, I think, that, in the second paragraph of this
section. the word "facilities" is employed in two meanings. Where
it first occurs, it means those acts or operations that facilitate
or render easy the interchange of traffic,
Page 242 U. S. 78
while, in the final clause, "to give the use of its tracks or
terminal facilities," the words "terminal facilities" are employed
in a figurative sense, and as equivalent to "terminal properties."
This is obvious from the association together of tracks and
terminal facilities as things subject to use. And the same words
are used in the same sense in the 1906 amendment to § 1 of the act
(c. 3591, 34 Stat. 584), by which the definition of the term
"railroad" was expanded so as to include
"all switches, spurs, tracks, and terminal facilities of every
kind used or necessary in the transportation of the persons or
property designated herein."
There is nothing in the order of the Commission now under review
that requires appellants or either of them, or their agency, the
Nashville Terminals, to give the use of tracks or terminal
facilities to the Tennessee Central, either physically or in any
other sense, within the meaning of the final clause of § 3. It
require them merely to interchange interstate competitive traffic
to and from the tracks of the Tennessee Central on the same terms
as interstate noncompetitive traffic, so long as they interchange
both kinds of traffic with each other on the same terms, and also
to establish and apply to the switching of interstate traffic to
and from the Tennessee Central rates and charges not different from
those that they contemporaneously maintain with respect to similar
shipments as between themselves. Undoubtedly the expenditures made
by appellants in the construction of the joint terminal property,
so far as that property is used in interchange switching, is an
element to be taken into consideration in fixing the amount of the
switching charges. And the same is true with respect to the value
of the separately owned tracks of appellants, so far as necessarily
used in mutual interchanges.
The practice of the Louisville & Nashville and the Nashville
& Chattanooga in refusing to interchange competitive
Page 242 U. S. 79
on the same terms as noncompetitive traffic with the Tennessee
Central, while interchanging both kinds of traffic as between
themselves, was found by the Commission to be unduly
discriminatory, there being no substantial difference in the
conditions of the interchange, nor any increased cost of
interchanging competitive as compared with noncompetitive
traffic.
The tracks included in the joint terminal arrangement of
appellants include 8.10 miles of main and 23.80 miles of side
tracks separately owned by the Louisville & Nashville, 12.15
miles of main and 26.37 miles of side tracks separately owned by
the Nashville & Chattanooga, and some yard tracks owned by the
Louisville & Nashville Terminal Company, whose entire stock is
owned by the Louisville & Nashville R. Co. It may be conceded
that, by virtue of the lease from the Terminal Company to the
appellant railroads, even as modified in December, 1902, there
remains in some sense a joint tenure of the property of the
Terminal Company. But, in my view, the question of the ownership of
the property is entirely aside from the real point. The
discrimination charged and found by the Commission is not so much
in the use of terminal property as in the performance of
interchange services, and for such discrimination a community of
interest in the property affords neither justification nor
excuse.
So far as the nondiscriminatory performance of those services
requires that cars from the Tennessee Central shall be admitted to
the terminal tracks of the Louisville & Nashville and the
Nashville & Chattanooga, and to tracks in which these companies
have a joint interest, this is so only because appellants have, as
between themselves, and also as regards traffic from the Tennessee
Central, thrown their terminals open to the public use. The
argument for appellants rests upon the essential fallacy that the
terminal facilities are, in an absolute sense, and for all
purposes, private property. But they, like all
Page 242 U. S. 80
other parts of the railroad line, are, with respect to their
use, devoted to the benefit of the public. And the final clause of
§ 3, while it protects each carrier to a certain extent in the
separate use of its terminal property, does so not otherwise than
it protects its particular use of the main line of railroad.
"Tracks" are mentioned together with "terminal facilities," and the
same rule is applied to both. The fact that a carrier owns its own
terminals is no more an excuse for discriminatory treatment of its
patrons with respect to services performed therein than its
ownership of the main line is an excuse for discrimination with
respect to transportation thereon.
It is said that if either of the appellants were the sole owner
of the terminal properties in question and used them alone, it
could not be deemed to discriminate against the Tennessee Central
because of a mere refusal to switch for it in the interchange of
traffic. Of course, if it refused all connecting carriers alike, it
could not be held for discrimination. But whether it would be at
liberty to refuse to switch for the Tennessee Central would depend
upon circumstances -- for instance, upon whether the Interstate
Commerce Commission, pursuant to its authority under § 15 of the
act, as amended in 1910 (c. 309, 36 Stat. 552), should establish
the two lines as a through route, or (without that) should
determine upon adequate evidence that the refusal of switching
privileges was a failure to afford reasonable and proper facilities
for the interchange of traffic between the connecting lines under §
3. Car interchange between connecting lines was made by the 1910
amendment of § 1 of the act a positive duty on the part of the
carrier, even without action by the Commission. 36 Stat. 545.
I deem it a most material fact that the appellants already
interchange noncompetitive traffic with the Tennessee Central, upon
terms like those upon which they interchange both competitive and
noncompetitive traffic
Page 242 U. S. 81
between themselves. So far as their method of doing this amounts
to an interchange of trackage rights, they have by their voluntary
action thrown open the use of their terminals to all branches of
traffic excepting so far as they discriminate against competitive
traffic over the Tennessee Central. Not only so, but the Commission
has expressly found (33 I.C.C. 82) that the Louisville &
Nashville will switch competitive coal and other competitive
traffic to and from the Tennessee Central, the interchange being
usually effected at Shops Junction and over the rails of the
Nashville & Chattanooga. But the Louisville & Nashville
insists upon charging local rates as if for transportation between
Nashville and Overton, Tennessee, which amount to from $12 to $36
per car, and are therefore in effect prohibitory. For a time, the
Nashville & Chattanooga in like manner offered to perform the
same switching service to and from the Tennessee Central at its
local rates, and published a terminal tariff December 14, 1913,
expressly providing that such local rates would apply to
competitive traffic from and destined to the Tennessee Central.
This, however, was revoked shortly after the complaint in the
present case was filed. There is here a very plain discrimination,
found by the Commission to be an undue discrimination not merely
against the Tennessee Central, but against a "particular
description of traffic," which is distinctly prohibited by § 3. The
conduct of appellants is quite analogous to the making of a
discrimination in the charge for carriage, not because of any
difference inhering in the goods or in the cost of the service
rendered in transporting them, but upon the mere basis of the
ownership of the goods -- a discrimination condemned by this Court
in
Interstate Commerce Commission v. Delaware, Lackawanna &
Western R. Co., 220 U. S. 235,
220 U. S.
252.
The present system of interchanging traffic between appellants
was established in August, 1900, a year or two before the line of
the Tennessee Central was constructed
Page 242 U. S. 82
into Nashville. Emphasis was laid upon this in argument as
refuting the suggestion that the arrangement could be deemed a
"device" to avoid the discrimination clause of § 3 of the
Interstate Commerce Act. The findings of the Commission show,
however (33 I.C.C. 81), that when the Tennessee Central entered
Nashville, it was only after strong opposition from the Louisville
& Nashville, and (p. 79) that, prior to the year 1898, the
people of Nashville had become desirous of better terminal
facilities, particularly of a union passenger depot, and an
ordinance authorizing a contract to that end between the city and
the Terminal Company was proposed, containing a proviso that the
terminal facilities should also be available on an equitable basis
to railroads which might be built in the future. The present
appellants opposed this proviso, and an ordinance omitting it was
passed, but was vetoed by the mayor on account of the omission. It
clearly enough appears, therefore, that the agreement of August,
1900, was made by appellants in view of the probability of some
other road entering Nashville thereafter.
But, were it otherwise, the result should be the same. The
obligation to avoid discrimination and to afford "all reasonable,
proper, and equal facilities for the interchange of traffic" is not
qualified by any rights of priority. The new road is a servant of
the public equally with the others, subject to the same duty, and
entitled, for its patrons, to demand reasonable and impartial
performance of the reciprocal duty from carriers that preceded it
in the field.
In my opinion, the present case is controlled by our decisions
in the former case between the same parties (
Louisville &
Nashville R. Co. v. United States, 238 U. S.
1,
238 U. S. 18-19),
and the earlier case of
Pennsylvania Co. v. United States,
236 U. S. 351,
236 U. S. 366
et seq. In these cases, many of the same arguments that
are here advanced were considered and overruled by the Court. The
latter case concerned the
Page 242 U. S. 83
switching of interstate carload traffic between industrial
tracks and junction points within the switching limits at New
Castle, Pennsylvania. The Pennsylvania Company undertook to sustain
a practice of doing such switching at $2 per car for three
railroads while refusing to do it for the Buffalo, Rochester, &
Pittsburgh, upon the ground of its sole ownership of the terminals
and the fact that the three other carriers were in a position,
either at New Castle or elsewhere, to offer it reciprocal
advantages fully compensatory for the switching done for them in
New Castle, whereas the Buffalo, Rochester, & Pittsburgh was
not in a position to offer similar advantages. The Interstate
Commerce Commission (29 I.C.C. 114) overruled this contention, and
in this was sustained by the district court (214 F. 445), and by
this Court. We there held (236 U.S.
236 U. S. 361)
that the question what was an undue or unreasonable preference or
advantage under § 3 of the Interstate Commerce Act was a question
not of law, but of fact, and that, if the order of the Commission
did not exceed its constitutional and statutory authority and was
not unsupported by testimony, it could not be set aside by the
courts; held (p.
236 U. S.
363), that the provisions of § 3, although that section
remains unchanged, must be read in connection with the amendments
of 1906 and 1910 to other parts of the act, and that, by these
amendments, the facilities for delivering freight at terminals were
brought within the definition of transportation to be regulated,
and also (pp.
236 U. S. 368,
236 U. S. 369)
that the order did not amount to a compulsory taking of the use of
the Pennsylvania tracks by another road within the inhibition of
the final clause of § 3, no right being given to the Buffalo road
to run its cars over the terminals of the Pennsylvania Company, or
to use or occupy its stations or depots for purposes of its
own.
In the former case between the present parties (
Louisville
& Nashville R. Co. v. United States, 238 U. S.
1), we sustained
Page 242 U. S. 84
the district court (216 F. 672) in refusing an injunction to
restrain the putting into effect of an order of the Commission (28
I.C.C. 533, 540) requiring appellants to interswitch interstate
coal with the Tennessee Central as they did with each other. The
findings of the Commission (p. 542) recognized that the terminals
were in part jointly owned and in part the separate property of the
two appellants. The district court (216 F. 682, 684) alluded to
this fact. And this Court (238 U.S.
238 U. S. 17-20)
did not ignore that fact, but laid it aside as immaterial,
declaring:
"If the carrier, however, does not rest behind that statutory
shield [the final clause of § 3], but chooses voluntarily to throw
the terminals open to many branches of traffic, it to that extent
makes the yard public. Having made the yard a facility for many
purposes and to many patrons, such railroad facility is within the
provisions of § 3 of the statute, which prohibits the facility from
being used in such manner as to discriminate against patrons and
commodities."
If the decision reached in the present case is adhered to, and
remains uncorrected by remedial legislation, it will open a wide
door to discriminatory practices repugnant alike to the letter and
the spirit of the Act to Regulate Commerce.
MR. JUSTICE DAY, MR. JUSTICE BRANDEIS, and MR. JUSTICE CLARKE
concur in this dissent.