(dissenting).
Except for one underlying thought, .we would be able to follow the majority opinion to its conclusion. Not being in accord with this underlying thought, we must dissent.
The thought is that railroad carriers have a property right in the prospective traffic which might or would (except for some complained of act of another) pass by their lines. This is the same claim of property right which the ox team and pack horse asserted against steam transportation, the stagecoach against the trolley, and which now in turn the railroads are asserting against the gas engine, motortruck, and bus. It may be that all of them will in the near future combine in the attempt to enforce such a right against air carriers.
It is unnecessary to inquire into the validity of such a claim of right because the complainants have expressly disclaimed it and the. majority opinion does not avow it. It seems to us, however, that it underlies the ruling made because this is based upon the unconstitutionality of the act of Congress, under authority of which the commission acted in making the order, the enforcement of which is enjoined, and the uneonstitutionality consists in that the order deprives the complainants of property without due process, etc. The logic of the situation is that if they have a property right they should have protection, but if they have no property right they have no legal or equitable right of complaint. The property interest of a carrier in compensation for the carriage of traffic committed to it is undoubted. Whether it has a like property right in prospective traffic is another question. The sole question here is the existence of the latter right.
An outline and very general statement of the fact situation, it seems to us, makes this clear. There is a traffic between the Atlantic *1012and Pacific Coasts. There are established railroad line carriers which have been taking care of this traffic and will, if permitted, continue to do so. This traffic, or a part of it, may be visualized as carried by existing railroads from the Pacific Coast to the Mississippi river where the Ohio empties into it. If we then think of the traffic as transported northwardly by one line of railroad to its junction with the Pennsylvania Railroad and over it eastwardly through Pittsburgh to the Atlantic Coast, we have a sufficiently general idea of the pre-order situation. The Ohio river extends from its junction with the Mississippi northeastwardly to and beyond Pittsburgh and is navigable at least to Pittsburgh. If we think of the line of the first railroad we have mentioned and of the Pennsylvania railroad as forming the legs of a right angle triangle, the Ohio river would be the hypothenuse. A barge line water route has been established on the Ohio river. Any one can foresee that if the all-rail route from coast to coast traffic is diverted to a rail and water route to Pittsburgh and a rail route to the Atlantic, the railroad first mentioned may lose all of this through traffic and the Pennsylvania that part of it formerly carried by the first mentioned railroad except only as the Pennsylvania would continue to carry it east from Pittsburgh.
The situation of the railroads mentioned is typical of all and shows the real nature of the damnum of which complaint is made and that it relates to what we have called prospective traffic. The damnum is unquestioned and is not merely speculative but actual. The sole question is whether there is likewise an injuria. If, as before stated, the complainants have a property right in this prospective traffic which they will lose, they have suffered not merely a loss but a legal injury.
Inasmuch, however, as it is conceded that no such right exists, we are unable to see how the decree in question can deprive the complainants of property which has no existence. If we were dealing with a statute which gave the right to a hearing before a preliminary order could be made, we would concede that the question of a property right did not arise. The statute, however, is, and we think correctly, construed to permit of the order without a hearing, and thus the sole question is its constitutionality and its constitutionality turns upon the question of a deprivation of property without compensation or otherwise without due process. The existence of the property right thus becomes pivotal.
We think the bill should be dismissed.