(dissenting).
I agree that the commission’s order is one that we have jurisdiction to set aside, and its failure to name an effective date does not invalidate it, but I do not think the commission has made findings sufficient to support it. Atchison, Topeka & S. F. Ry. Co. v. United States, 295 U.S. 193, 55 S.Ct. 748, 79 L.Ed. 1382, decided April 29, 1935. The putting in evidence of the former proceedings. in which Page and Harris were denied a certificate of public convenience did not make the findings in that case findings in this one. The Seaboard Air Line Railway Company and its receivers were not parties to that proceeding and Page and Harris are not parties to this one.
The .commission did not there hold that it was against the public convenience for any one to operate the Fort Benning tracks. On the contrary, its position was that for reasons of economy they should not be operated as a short line, but that some connecting carrier should operate them. This *945the Seaboard is attempting to do. Its doing so is no evasion of the commission’s former order, but is in conformity with it. The real objection is that the Seaboard is doing it free. The commission, perhaps, thinks it unwise or unreasonable that it be done free, but it has made no such fact finding. If it had, its order might stand, but cannot stand without it. The fact is of the class peculiarly for determination by the commission. The commission distinctly disclaims as a ground for its order that the Seaboard is operating to Fort Benning without a certificate of public convenience, and concedes that a court injunction under Interstate Commerce Act, § 1 (20), 49 U.S. C.A. § 1 (20), is the exclusive statutory remedy for that. Its statement that “a carrier has no right by tariff to include within the switching district tracks over which the carrier has no right to operate as a common carrier, or which cannot be used by other common carriers through switching arrangements or otherwise,” will no't support the order. The first clause is bad in law, for carriers daily and everywhere switch over privately owned tracks. If they are going to do so, the act merely requires that the filed tariff so state, with the charge to be made for the service. The last clause is also wrong in fact, for the proof and the finding of the commission are that the other common carrier, the Central, can, if it wishes, make the same switching arrangements which the Seaboard has. The commission raises a question of the validity of the right by which the government’s tracks are being used, but it does not lie with the commission to object if the government is not objecting, nor to inquire into the title of the carrier to the tracks used. Cleveland, C., C. & St. L. Ry. Co. v. United States, 275 U.S. 404, 405 (8), 48 S.Ct. 189, 72 L.Ed. 338. The commission says: “Our finding of unlawfulness of the tariff under consideration therefore, is not predicated on the fact that the Seaboard has violated Section 1 (18), but rather on the fact that it has published rates to and from Fort Benning, a station not on its lines and which cannot be reached by it or any other common carrier.” This is not true in fact, for the Seaboard’s tariffs read as they always did to Fort Benning junction. The amendment which is canceled proposes to switch free on to Fort Benning. It is as though a mill owned tracks to its mill village, whether near or far, and the Seaboard was proposing to switch free over them. The commission’s last position: “And consequently it cannot pay out of its line haul rates for a service which it is not legally obligated to perform and which it cannot perform except through the employment of contractors with the government” begs the question. If this service is switching requiring no certificate of public convenience but only a filed tariff, it becomes, after the tariff is filed, one which the carrier is obligated to perform. If instead of hiring its own crew to do it it hires Page and Harris, it should pay them. It is wholly immaterial whether Page and Harris own the tracks, lease them, or contract otherwise with their owners. The true questions are: First, whether this is switching or operating an extension without a certificate of public convenience to be tested exclusively by a suit for injunction? Second, can the Seaboard afford financially to do what it is doing, or is the switching service unreasonably cheap ? The commission might so find, but it has not.
The Central has sought by a so-called counterclaim to litigate the first of the two stated questions. The Seaboard’s objection thereto ought to be sustained. Equity Rule 30 (28 U.S.C.A. following . section 723) as to equitable counterclaim refers to defendants whom the plaintiff has impleaded. The receivers of the Seaboard sued the United States in the Southern District of Georgia where they themselves are not liable to suit. The Central has intervened to support the attacked order, as it has a statutory right to do. The proceeding is by statute before a specially organized court, and the appeal provided is an extraordinary one direct to the Supreme Court. Such a case is not to be complicated even by the plaintiff with matters of ordinary equity triable by one judge with appeal to the Circuit Court of Appeals. Pittsburgh & W. Va. R. Co. v. United States, 281 U.S. 479, at page 488, 50 S.Ct. 378, 74 L.Ed. 980. Much less can an intervener drag such in and also obtain a venue which he could not otherwise have had. In Chicago Junction Case, 264 U.S. 258, 259, 44 S.Ct. 317, 68 L.Ed. 667, there was no injection of another cause of action, but only a bringing into the case of parties who had acted on the attacked order that they might defend it and be bound by the result. The court of three judges ought to strike the so-called counterclaim.