(dissenting).
I would respectfully submit that the construction of the Pacific Railroad Acts offered by the majority relies too heavily upon a 1967 interpretation of the language chosen. “Discrimination” has become colored by its present use in the Interstate Commerce Act; “branch lines” have assumed proportions far beyond those obviously contemplated by the Acts. One could hardly expect to find language in the Pacific Railroad Acts which would specifically guard against the application of an Interstate Commerce Act not yet envisioned; and any argument based on its absence could not survive its own statement.
The Congress designed the system so that “branch lines” would connect with the “main trunk”;1 the question remains whether they could foresee competing systems. A word used indicates that they did not.
“ * * * the several companies * * * are hereby required to operate * * * as one continuous line.”
I am constrained to find the "branches” to which discrimination was forbidden were feeder lines, not competitors. The “discrimination” referred to *688appears to have been directed, in addition to the two segments of the “main trunk”, to the branches who were to compete between themselves, not with the “one continuous line”.2 I believe that Congress intended to create one railroad; the two organizations were formed to accomplish this end and were not intended to diminish their right to operate as such. I would agree that the obligations of the parties under the Acts were fulfilled by mere physical connection and the absence of discrimination between themselves and their branches, but I would not equate fulfillment of duty with exhaustion of rights. The duty of preferential solicitation and routing arises from the control of Central Pacific by Southern Pacific and the arrangements which resulted. In other words, if my interpretation is correct, the Pacific Railroad Act gives the parties the right to agree to exert in concert any lawful competitive force available to them; the control of Central Pacific by Southern Pacific demands that such an agreement be made. It is also worth noting that the separate companies were given the express right to consolidate their corporate structures. Act of July 2, 1864, ch. 216, § 16, 13 Stat. 363.
I do not agree that the cases cited in the majority opinion add weight to the position therein taken. In particular, I cannot agree that in the case of Union Pac. Ry. Co. v. Chicago, R. I. & P. Ry. [supra] 3 the Supreme Court enjoined “discriminatory practices” under the authority of the Pacific Railroad Acts. Reference to the Acts gave support to the Court’s finding of Congressional policy; neither the questions involved nor the answers given shed light here. The other authorities might well be cited in favor of the position taken by the Union Pacific as well as those conclusions for which they were cited. Each of the cases refer to the “main line” and “connecting branches.” I would not agree that the language can be transplanted to apply equally to competing *689systems. Each of the cases recognize that the Acts demand something more than mere physical connection.4
The position I have taken is not novel. It was stated by the Interstate Commerce Commission when it originally adopted the five conditions now under review, and cited as the correct interpretation when the Commission first ruled on the petition for reopening and modification. The following is taken from Control of Centra] Pacific by Southern Pacific, 317 I.C.C. 469, at 484:
“The existing conditions are consistent with the stated purposes of the Pacific Railroad Acts, and one of the purposes of those conditions is to protect the rights of the Union Pacific and the public under those acts, which are still in force and effect. In imposing the conditions, we stated:
‘By virtue of the Pacific Railroad acts the Union Pacific and Central Pacific have certain reciprocal rights, including the right to cooperation in the establishment and maintenance via the Central Pacific-Union Pacific route of through train service and joint rates reasonably necessary to meet competition by other routes, and to cooperation in other respects, to the end that the lines of said companies shall be operated and used as one connected, continuous line. We think that the rights of the Union Pacific and all interests of the public under the Pacific Railroad acts may be protected by imposing upon the acquisition and exercise of control by the Southern Pacific the five conditions set out above. * * * ’
The proposed modified condition is directed solely to the protection of the Central Pacific line and, thus, would favor it over the Union Pacific line. Although the proposed modified condition is directed toward continued protection of the Central Pacific line, it would fall short of its purpose as the Union Pacific could not be expected to preferentially solicit for that line in the absence of a reciprocal obligation upon the Southern Pacific. It is clear that mere physical connection does not satisfy the purposes of the Pacific Railroad acts; and it is noteworthy that both the 1862 act and the 1864 act authorized the roads concerned ‘to form themselves into one consolidated company.’ ”
Even counsel for the Government expressed a similar view of the proper construction of the acts in his argument of United States v. Southern Pac. Co., 259 U.S. 214, at p. 217, 42 S.Ct. 496, 66 L. Ed. 907 [1922]:
“The Pacific Railroad laws imposed on the franchise of the Central Pacific Railroad and on the franchise of the Union Pacific Railroad the reciprocal duty of the one railroad not to discriminate against the other in favor of any other railroad, but to exert to*690gether in normal voluntary cooperation all of the natural forces of a single railroad naturally competing with the parallel Southern Pacific Railroad * * [Emphasis supplied]
Most persuasive, in my opinion, is the fact that the Interstate Commerce Commission has recognized and the Pacific railroads themselves have operated under this interpretation for a long period of time. This “long-continued reliance”, was made an express finding in the Commission’s 1962 decision. Control of Central Pacific by Southern Pacific [supra at p. 483]. It is undisputed that the Rio Grande had aspirations at the time the nine conditions were imposed of becoming competitive with the Union Pacific. The Rio Grande participated in the Control case; the conditions affected the operation of that route to a certain extent when imposed; the interpretation of the Pacific Railroad Acts was clearly stated; and the conditions were accepted as reflecting the law up until 1957. The rights which are reflected in “condition e” were granted by the Congress; they cannot be deleted by the Commission. I must therefore, respectfully dissent.
. “Branch lines” and “main trunk” were the descriptions often given of the system in the Congressional debates; in particular the quotation offered by the majority. Cong. Globe 37th Cong.2nd Session, 2807 [1862].
. Senator Sherman offered the following argument for private ownership of the branch lines: “I hope that this proposition, which will add another prong to this many-pronged railroad, will be voted down, and that the proposition of the Senator from New Hampshire will be adopted, and that we may agree upon the construction of one main Pacific railroad, which may be promptly constructed, and give such reasonable aid as we can to diverging routes, all pointing to the main line, and I think that all these diverging lines ought to be under different corporations. There is one part of this bill that I do not like. I do not wish to criticise it, but I do not think the Pacific Railroad Company ought to build any of these diverging lines. They ought to be built by different companies so that all the diverging lines will compete with each other, and compete with each other fairly, while they all pour their streams of commerce into one great line, which is aided by the Government. But under the operation of the bill as you have it now framed, the Pacific Railroad Company will own one of these branch lines, and may to the sacrifice of other interests involved in these roads divert the whole travel and transportation to one line, thus destroying the property in which you yourself invest to the tune of $16,-000 a mile. I think it would be much wiser to leave these various branches to be built by the local interests concerned.” Oong.Globe, 37th Gong., 2nd Sess., 2784 [1862],
. That case was an action for specific performance of certain contracts entered into by the Union Pacific and the Chicago, Rock Island and Pacific Railway Company and the Chicago, Milwaukee and St. Paul Railway Company in which the Union Pacific had leased the use of their bridge across the Missouri to the two latter named companies. The Union Pacific claimed that it had no authority to lease the use of its lines and that the contract was therefore ultra vires. The Court found that the contract did not disable the Union Pacific from fulfilling its obligations to the public. The Court then cited the Pacific Railroad Acts as authority for the proposition that the Congressional policy favored “continuous lines”. “It is impossible for us to ignore the great public policy in favor of continuous lines thus declared by congress, and that it is in effectuation of that policy that such business arrangements as will make such connections effective are made.” Union Pacific Ry. Co. v. Chicago, R.I. and P. Ry. Co., 163 U.S. 564, at 589, 16 S.Ct. 1173, at 1183, 41 L.Ed. 265.
. I refer particularly to United States v. Union Pac. R.R., 226 U.S. 61, 33 S.Ct. 53, 57 L.Ed. 124 [1912]. As I read that case the Court made two observations which are important here. First, they found that the Pacific Railroad Acts require more than mere physical connection. The Court then listed reasons why they believe that physical connection was not the only requirement; but they did not proceed to define the obligations which did exist. Some light is shed on the question, however, by another comment contained in that opinion. While the Court was not disturbed about discrimination by Southern Pacific against the Rio Grande, they stated definitely that such discrimination against the Union Pacific would be contrary to the Act.
“Sueh practices of systematic and preconcerted discrimination as are said to have destroyed the Rio Grande’s carrying trade as a connection for the East for business at Ogden would have violated the statute as discriminations adverse to the Union Pacific and be equally violative of the letter and spirit of the acts of Congress. * * * ” 226 U.S. at 92, 33 S.Ct. at 59.
I believe that the opinion clearly indicates that the Union Pacific and Central Pacific were to be given special treatment because of the Acts that created them. While the extent of their rights is not defined, their existence is nevertheless acknowledged.