Pennsylvania Co. v. United States

HUNT, Circuit Judge

(after stating the facts as above). The'motion for a restraining order was asked upon the premise that, if that portion of section 3 of the act to regulate commerce, which requires that every carrier subject to the provisions- of the act shall, according to its respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines for receiving, forwarding, and delivering property to and from the several lines and those connected therewith without discriminating in their rates and charges between such connecting lines, stood alone, the Pennsylvania Company would be obliged to perform the service which the Buffalo, Rochester & Pittsburgh Company wishes it to perform, and which the order of the Interstate Commerce Commission says it shall ' perform. The question, therefore, is whether the additional clause in section 3, forbidding a construction of the language just referred to, which will require any' such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business, can under the facts avail the Pennsylvania Company.

We hold that it is not a use of the tracks or terminal facilities of the Pennsylvania Company that the Buffalo, Rochester & Pittsburgh *448Company seeks for- itself, but a service of transportation in receiving and forwarding freight tendered by it to the Pennsylvania Company, a service to be performed upon the payment of a reasonable compensation to the Pennsylvania Company; such compensation to be fixed, of course, in the first instance by that company. The use of the tracks and terminal facilities under the service asked for will be no greater than that which the Pennsylvania Company extends to other carriers which may' desire traffic carried. No physical occupancy by running trains or locomotives of the Buffalo Rochester and Pittsburgh Company is asked; there being, as we look at it, only tender of freight at a point of interchange already established by the Pennsylvania Company, and where it receives the cars ’ of every other road except the Buffalo, Rochester & Pittsburgh Company and hauls after delivery. The facts, therefore, take the case from within the scope of the rule of Louisville & N. R. Co. v. Central Stock Yards Co., 212 U. S. 132, 29 Sup. Ct. 246, 53 L. Ed. 441, where the Stock Yards Company demanded that the cars should be received by the Louisville & Nashville at a point which was an arbitrary one, near its terminus.

We have given careful consideration to the argument of counsel for the Pennsylvania Company -iii their effort to withdraw the case from the rule laid down in Grand Trunk Railway Co. v. Michigan Railroad Commission, 231 U. S. 457, 34 Sup. Ct. 152, 58 L. Ed. 310, but we believe the doctrine of that case controls this. The statute of the state of Michigan which was there examined by the court, in so far as it required interchange of traffic, was quite similar to the provisions of the act to regulate commerce pertinent to this case, for the language of the Michigan law, which required the forwarding and delivering of property, contained a proviso to the effect that nothing in the statute should be construed as requiring any railroad to give the use of its tracks or terminal facilities to another railroad engaged in like business. The extent of the city of Detroit was considered, a'nd necessarily the court was called upon to distinguish the facts in order to demonstrate the inapplicability of its previous ruling in Louisville & Nashville Railroad v. Stock Yards Co., supra, upon which reliance was placed by the railroad company in its effort to prevent the enforcement of the order of the State Commission. The court, however, regarded the effect of the order made by the state Railroad Commission as merely requiring the railroad companies to accept freight at the designated points for shipment to other designated points, and said that, “except in an extreme sense,” such an acceptance of freight was not a use of tracks and terminals other than in the sense of being only a proper use for which the roads were constituted to afford. So, upon the principle that the order made was a regulation of the business of a carrier and not an appropriation of terminal facilities for the use and benefit of other roads,' it was sustained.

The underlying principle is that a common carrier may be required to accept a car for transportation whenever such a car is offered at a place where the common carrier has established a point of interchange, provided always a reasonable compensation is fixed for the service. Here, the place where the cars are offered not being an arbitrary one, *449the carrier Pennsylvania Company may not inquire into the ownership of the car, nor into .the route over which it has been moved to reach its rails merely to decide whether or not it will transport the car so offered. To hold otherwise would greatly diminish the regulating power of the Interstate Commerce Commission to treat all carriers as within the letter of the ‘act to regulate commerce with respect to their duties to transport. It follows that, where compensation is offered, a practice of hauling the cars of several connecting carriers and absolutely refusing to haul the cars of another carrier is‘a discrimination which, in the interests of the public, may. be removed as properly within the power of just and reasonable regulation by the Interstate Commerce Commission. Interstate Commerce Commission v. Delaware, L. & W. R. Co., 220 U. S. 235, 31 Sup. Ct. 392, 55 L. Ed. 448.

The question of reasonable compensation is in no way involved, ánd no opinion is passed thereon.

Restraining order must be denied.