Missouri Pac. R. Co. v. United States

• Decision Date: 05 August 1927
• Docket Number: No. 450.,450.
• Citation: 21 F.2d 351
• Parties: MISSOURI PAC. R. CO. v. UNITED STATES (INTERSTATE COMMERCE COMMISSION et al., Interveners).
• Court: U.S. District Court — Western District of Arkansas

21 F.2d 351 (1927)

MISSOURI PAC. R. CO. v. UNITED STATES (INTERSTATE COMMERCE COMMISSION et al., Interveners).

No. 450.

District Court, W. D. Arkansas, Ft. Smith Division.

August 5, 1927.

Edward J. White and H. H. Larimore, both of St. Louis, Mo., and Thos. B. Pryor, of Ft. Smith, Ark., for Missouri Pac. R. Co.

Blackburn Esterline, of Washington, D. C., for the United States.

Daniel W. Knowlton, of Washington, D. C., for the Interstate Commerce Commission.

James B. McDonough, of Ft. Smith, Ark., for the Ft. Smith, Subiaco & Rock Island R. Co.

Before BOOTH, Circuit Judge, and REEVES and YOUMANS, District Judges.

PER CURIAM.

This is a suit by the petitioner to enjoin the enforcement of an order of the Interstate Commerce Commission, made on March 2, 1926, in the case of Ft. Smith, Subiaco & Rock Island Railroad Company v. Alabama & Vicksburg Railway Company et al. The order requires the establishment of through routes and joint rates for west-bound interstate traffic over the line of the Subiaco by way of Ola, Dardanelle, and Paris, Ark. The order includes in the route so established the branch line of the Missouri Pacific between Paris, Ark., and Ft. Smith.

The petitioner contends, first, that the order of the Commission is in violation of section 15(4), Interstate Commerce Act (49 USCA § 15) which prohibits the Commission from requiring "any carrier by railroad, without its consent, to embrace in such route substantially less than the entire length of its railroad * * * which lies between the termini of such proposed through route"; and, second, that the inclusion of the Paris branch of the petitioner in the through route sought to be established by the order of the Commission amounts to the taking of petitioner's property without due process of law.

A proceeding was first instituted before the Commission by the Ft. Smith, Subiaco & Rock Island Railroad Company against the Arkansas Central Railroad Company and Missouri Pacific Railroad Company. At that time no other carriers were made parties. On February 12, 1924, division 4 of the Commission made a report in the case. 87 Interst. Com. Com'n R. 617. In that report it was stated that the Paris branch of the Missouri Pacific, extending from Ft. Smith to Paris, was 46 miles long; that from Paris the Subiaco extends eastward to Dardanelle, Ark., a distance of forty miles, connecting at that point with a branch of the Chicago, Rock Island & Pacific Railroad to its main line at Ola, Ark., a distance of 14 miles from Dardanelle.

One of the points at issue is shown from the following paragraph from the report of the Commission:

"Complainant contends that existing routes via the Missouri Pacific are unreasonably long as compared with those embracing its line. Memphis is referred to by complainant as a representative interstate point. The distances between Memphis and Ft. Smith are approximately the same, 308 miles, via the Missouri Pacific, on the one hand, and Rock Island to Ola (or Missouri Pacific to Little Rock and Rock Island to Ola), complainant line to Paris, and the Paris branch beyond, on the other hand. Between Memphis and Paris the distance via the Missouri Pacific is 356 miles, and via the Rock Island and complainant line it is 262 miles. Taking all points on the Paris branch, Ft. Smith to Paris, inclusive, the average distances via these two routes are 332 and 285 miles, respectively. In other words, the average circuity of the Missouri Pacific's route is approximately 16 per cent."

Upon the same point the Commission said:

"We are of opinion that the one-line route of the Missouri Pacific is not so unreasonably long as to warrant us in depriving it of its long haul on traffic to which it otherwise would be entitled under section 15 (4) of the act, and that no undue preference or prejudice is shown to result from its participation in through routes with the complainant line on Arkansas intrastate traffic. We are further of opinion, however, that the continued operation of the complainant road will be in the public interest, and that through routes which would bring it additional traffic and revenue should be established, where such action may be taken without invading rights guaranteed by the statute. The question, then, is as to the extent of the Missouri Pacific's right to the long haul."

Further in the same report the Commission said:

"A consideration of these matters brings us to the conclusions that on inbound traffic the law does not guarantee to the Missouri Pacific its long haul as against the initial carrier, and that in instances where traffic may be so routed, without unreasonable circuity, as to give the originating carrier a longer haul, in connection with the use of the complainant line as an intermediate carrier, than via another route in connection with which the Missouri Pacific would have a longer haul, we are at liberty, notwithstanding the provisions of paragraph 15 (4) of the act, to require the establishment of such through routes. Having already found that such additional routes would be in the public interest, it is our opinion that they should be established to points on the Paris branch, Paris to Ft. Smith, inclusive, from eastern interstate points."

No order was made by the Commission on that report, for the reason that other carriers would be affected and that they had not been made parties. Other carriers were accordingly made parties defendant, and an amended complaint was again considered by division 4 of the Commission, and a report made on October 23, 1925. 102 Interst. Com. Com'n R. 708. The conclusion of the Commission was stated as follows:

"We accordingly find that the through routes and joint rates here sought are not necessary or desirable, in the public interest, and our former finding in this respect is reversed."

The matter was afterwards considered by the full Commission, and it made report thereon March 2, 1926. 107 Interst. Com. Com'n R. 523. In that report the Commission says:

"The rates and routes sought by complainant would apply only on west-bound traffic moving through Ola and Dardanelle, Ark., over its line and the Paris branch of the Missouri Pacific, to Ft. Smith, Ark., and points beyond. The other facts of record are sufficiently set forth in the reports referred to in the preceding paragraph, and need not be repeated here. The questions presented for decision are indicated by the contentions of the Missouri Pacific: (1) That establishment of the routes sought by complainant would necessarily require the Missouri Pacific to short haul itself in violation of section 15 (4) of the Interstate Commerce Act; and (2) that the public interest would not be served by their establishment.

"It should be noted that complainant expressly disclaims the right to participate in routes which would deprive an initial carrier of a long haul. From most of the points of origin involved, routes in accordance with complainant's prayer can be established over which traffic may move, without passing over the Missouri Pacific's rails until it reaches Paris, Ark., complainant's western terminus and only point of direct interchange with the Missouri Pacific. As to traffic so moving, the latter carrier would be only an intermediate or delivering line."

In its opinion the Commission said further:

"As to the question of public interest, the Missouri Pacific asserts that the traffic gained by complainant through the establishment of the additional routes would be primarily at its expense; that it is not paying dividends, nor earning a fair return on its property investment. The Missouri Pacific contends that we cannot lawfully grant the relief here sought solely on the ground of complainant's financial necessity, and that the public interest referred to in the statute is that of the shipping public in reasonable, expeditious routes.

"Such a narrow conception of the public interest we are unable to adopt. It should be remembered that in their present form the provisions of section 15, governing the establishment of through routes and joint rates, were enacted as part of the Transportation Act of 1920, and that they lay upon us the mandatory duty of establishing such routes and rates as may be found to be necessary or desirable in the public interest, whereas the corresponding statutory provisions in effect prior thereto did not."

The Commission further said in that report:

"The need of complainant and the benefit which it would derive from the proposed routes far outweigh any possible adverse effect upon the Missouri Pacific from the establishment of such routes. However, it is unnecessary in this case to rely solely upon...