(dissenting).
If I could agree with my associates that “the sole question presented on this appeal is the jurisdiction of the District Court to issue a writ of mandamus requiring appellees to perform their transportation duties under rates published and filed with the Interstate Commerce Commission,” I should be bound to agree with them that the District Judge should have taken jurisdiction, and, going further, to hold that the mandamus should have been granted. No one questions or could question that the District Courts of the United States are given such jurisdiction by statute.
As I read the record, the question presented on this appeal is an entirely different one. It is whether, under the circumstances disclosed by the petition, the answer, and the proofs taken on the motion to dismiss for want of jurisdiction, the relief sought is administrative in its nature, and to be granted by the Commission, or judicial in its nature, and to be granted by the court.
I read the record as the District Judge did. To me it seems quite plain that what is in question here is not the performance of an established legal duty to carry tendered freight for an established legal charge, as in Macon, D. & S. R. Co. v. General Reduction Co. (C.C.A.) 44 F.(2d) 499; nor the refusal by the line on which the freight originates to perform its obligatory duty to furnish cars, if it has them available. Huerfano Coal Co. v. Colorado & S. E. Ry., 28 I.C.C. 502; Campbell River Creek Coal Co. v. A. A. R. R. Co., 33 I.C.C. 558, 562; Ft. Worth & Denver City Ry. Co. v. Strickland (Tex.Civ.App.) 208 S.W. 410; Atchison, Topeka & Santa Fe R. Co. v. Smyth (Tex.Civ.App.) 189 S.W. 70. What is in question here is the matter of car service and car distribution, and of the establishment of rules and practices in regard to it as applicable to a port in a case where the originating railroad has no cars available, there is no through rate, and the connecting line declines, because of traffic conditions which seem to if reasonable and proper, to furnish cars to be carried into Mexico where it gets only a small switching haul.
Boiled down, this is all that can be made of the case plaintiffs bring. Much is said in general terms of the injury to the district and to the plaintiffs’ brokers and forwarders, through discriminative practices in favor of Laredo and Corpus Christi, indulged in by the trustee’s lines. Much is said of shipments lost, of freight diverted, and, generally, of plans frustrated and hopes denied. There is, too, some definite specification of particular refusals of shipments, of particular actions with • reference to railroad cars, tending to support the claim that, in refusing to furnish cars to the Port Isabel line for the switching movements in question, the trustee is determined, consistent, and resolute.
But this evidence was not needed, for he admits, indeed insists, that he has not furnished, and does not intend to furnish, cars for this movement. He denies that there is any law or regulation which compels him to, and insists that it is not discrimination to furnish cars- for-Mexican shipments where his road gets a line haul, and to refuse to furnish them where it gets only a meager switching charge. It is admitted by the Port Isabel Railroad Company that it will not, and cannot, furnish the cars demanded, not because it is averse to doing so, but because, it has none, and can get none unless the trustee will furnish them, or it can obtain funds to buy them. It avers that it is endeavoring to obtain a loan wherewith to buy cars, and that its efforts in that regard have been opposed and thwarted by the appellant District in this case.
There stands out in the pleadings, the affidavits, the admissions, the attitude and the conduct of the parties, this stark, inescapable fact, that just as firmly as plaintiffs in the court below, appellants here, believe that it would be reasonable and just to require defendants below, appellees here, to institute the practice of furnishing them with cars, and that they should be compelled to do so, appellees believe that such a practice would be unreasonable, and that an order requiring them to institute it would be unjust.
Like the District Judge, I do not find anything in the record upon which to rest a judicial pronouncement in favor of or against the practice invoked. As it did to the District Judge, it seems clear to me, too, that under the circumstances obtaining here, as the pleadings, the affi*508davits, and the other proofs show them to be, there is presented for the administrative judgment of the Commission, a question in regard to car service and car distribution matters peculiarly within its province.3
The majority opinion refers to the agreement existing between carriers for the exchange of cars. This agreement is purely voluntary; it does not have the force of law.4 It is for the Commission, under the authority of law, to deal with and prescribe rules and practices for situations of thé kind in question here. It has not done so. Nothing in the record or the briefs points to any law or tariff, or any rule or order of the Commission, governing this situation. Courts may not take cognizance of a complaint brought to establish one. Nor may they, in the absence of the establishment of such a rule or order, take cognizance of a complaint for damages, or for mandamus, based on the claimed unreasonableness of assailed practices.
I had thought this definitely and beyond question settled. A reference to some of the authorities will show, I think, that it is.
United States Nav. Co. v. Cunard S. S. Co. (C.C.A.) 50 F.(2d) 83 was a suit for injunction. The court, in an exhaustive opinion5 pointed out the great scope and sweep of the principle laid down in the Abilene Case (Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9 Ann.Cas. 1075) that there must be prior resort to the Commission wherever complicated questions of fact arise, and experience in technical matters is required.
In Louisville & N. R. R. Co. v. Cory (C.C.A.) 54 F.(2d) 8, a judgment obtained against a carrier for not furnishing cars when it did not have them available was reversed on the ground that the duty of defendant, which plaintiff alleged was breached, to provide itself with reasonably ade-quate facilities to perform its public service, presented an administrative question for the initial determination of the Commission. Here this precise question is presented as to the Port Isabel line, while as to the trustee’s line there is presented the sharply contested administrative question whether it is a reasonable or unreasonable practice to decline to furnish cars where there is no through route, and only a switching service to be performed by the connecting carrier.
In Carrollton Fuel Co. v. New Orleans & N. E. R. R. Co. (C.C.A.) 69 F.(2d) 691, 693, a suit for damages and injuries caused by the claimed discriminatory application of rates, this was reaffirmed upon the authority of many cited cases. The court there said: “Texas & Pacific R. R. Co. v. Abilene Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9 Ann.Cas. 1075, was more than the decision of a case. It laid down principles having germinative and expansive power. Subsequent decisions following its lead have in the application of its principles to new facts broadened and expanded them.” c/f Norge Corporation v. Long Island R. Co. (C.CA.) 77 F.(2d) *509312; Aron v. Pennsylvania R. R. Co. (C.C.A.) 80 F.(2d) 100, 103 A.L.R. 1367.
Atlantic Coast Line Ry. Co. v. Smith Bros. (C.C.A.) 63 F.(2d) 747 cited by the majority as authority for its position that the connecting carrier, where there is no through rate, is obliged to furnish cars, is wholly without application here.
A suit for overcharges brought against all the carriers participating in a movement as to which there was no joint through rate, the holding was that the initial and connecting carriers, who sought to escape reparation for the rate exacted by the terminal carrier, had made no proof rebutting the Commission’s finding that the collection of the freight by the terminal carrier was the joint act of them all.
There is no such question here. What is sought is a court decree to compel a connecting carrier having no interest in or concern with a movement, except to perform a switching service, to furnish all cars which may be needed for shipments to Mexico, as to which there is no joint through rate, which do not originate on its lines, and in regard to which it gets no line haul. Whether, under all the circumstances, the Commission under its plenary authority over car service and car distribution could reasonably require the connecting carrier to institute this practice, is not before us. What is before us is whether there is any legal basis in this record for a finding and judgment that the legal duty to do so is so plain and clear as that, in advance of Commission action, it can be compelled by mandamus to perform it.
When the record is considered as a whole, in the light of the physical circumstances at the Port, and those involved in the transportation desired, in the light, too, of the authority of the Commission over matters of car service and distribution, and in the light of the discrimination claimed, I think it plain that the petition presents a matter not now ripe for the precise and legal mandate of a court, but needing first the informed administrative action of the Commission, under the undoubted authority over such matters which the Congress has conferred upon it.
I respectfully dissent from the judgment of reversal.
Chicago, R. I. & P. Ry. Co. v. United States, 284 U.S. 80, 52 S.Ct. 87, 76 L.Ed. 177; Assigned Car Cases, 274 U.S. 564, 47 S.Ct. 727, 71 L.Ed. 1204; United States v. New River Co., 265 U.S. 533, 44 S.Ct. 610, 68 L.Ed. 1165; Midland Valley R. Co. v. Barkley, 276 U.S. 482, 48 S.Ct. 342, 72 L.Ed. 664.
“By .the Esch Car Service Act [40 Stat. 101 see 49 U.S.C.A. § 1(11)], the Interstate Commerce Commission was given sweeping control over rules of car interchange and car hire settlement. Section 1(14) of this act (49 U.S.C.A. § 1(14) provides: ‘The commission may, after hearing, on a complaint or upon its own initiative without complaint, establish reasonable rules, regulations, and practices with respect to car service by carriers by railroad subject to this chapter including the compensation to be paid for the use of any locomotive, car, or other vehicle not owned by the carrier using it, and the penalties or other sanctions for nonobservance of such rules, regulations or practices.’ ” Chicago, R. I. & P. Ry. Co. v. United States, supra, 284 U.S. 80, at page 105, 52 S.Ct. 87, 95, 76 L.Ed. 177.
“The American Railway Association is, and has been since its inception, a purely voluntary organization. No carrier is bound to subscribe to its Code of Per Diem Rules, and no carrier operating less than one hundred miles of road is eligible to voting membership.” Chicago, R. I. & P. R. Co. v. United States, 284 U.S. 80, at page 103, 52 S.Ct. 87, 95, 76 L.Ed. 177.
“Approved in the Supreme Court in the same case, 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408, as ably and carefully drawn.”