The Grand Trunk Railway Company of Canada and the Detroit, Grand Haven & Milwaukee Railway Company filed each its separate bill to restrain the Michigan Railroad Commission and the Attorney General of that state from enforcing certain orders of the Commission made under the authority of the Michigan Railroad Commission Act (being Act No. 300 of the Public Acts of Michigan of 1909, as amended by Act No. 139, P. A. Mich. 1911), relating to the intracity transportation of car load freight between complainants’ terminal tracks and their junctions with other roads, and to restrain the enforcement of any penalties or remedies provided for the violation of the orders of the Commission or of the acts of the state of Michigan in question. Applications for interlocutory injunctions were heard under section 266 of the New Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1162 [U. S. Comp. St. Supp. 1911, p. 236]).
Complainants contend that the statute and orders of the Commission in question are unconstitutional and void, first, as denying the equal protection of the laws, in violation of the fourteenth amendment to the federal Constitution; and, second, as contravening the commerce clause of that Constitution. These objections present the larger questions in the case. Other objections, addressed to the validity of the statute and of the proceedings involved, will be stated later. The purpose of the Commission Act, as indicated by its title, is “to
By section 7 of the original act, the railroads subject to its provisions are required to “afford all reasonable and proper facilities by the establishment of switch connections between one another and the establishment of depots and otherwise for the 'interchange of traffic between their respective lines and for the receiving, forwarding and delivering of passengers and property to and from their several lines and those connecting therewith,” and to “transfer and deliver without unreasonable delay or discrimination any freight or cars or passengers destined to any point on its own line or on any connecting line” without discrimination in rates and charges between such connecting lines.
Any person delivering property for transportation is given the right of routing shipments, and of prescribing over what connecting line transportation shall be made; and it is declared to be the duty of the initial carrier to observe the direction of such shipper, and, in case such direction is not given, “to so route the freight as to give the property the benefit of the lowest rate published between points of origin and destination.” By the same section the Commission is empowered, upon application, to require steam railroads and interurban and suburban railways to interchange cars, car load shipments, less than car load shipments, and passenger traffic “where it is practicable and the' same may be accomplished without endangering equipment, tracks or appliances of either party,” and to require the construction of physical connections upon such terms as the Commission may determine. The same section provides that:
. “Every corporation owning a railroad in use shall, at reasonable times and 'for a reasonable compensation, draw over the same the merchandise and cars of any other corporation or individual having connecting tracks; Provided, such cars are of the proper gauge, are in good running order and equipped as required by law and otherwise safe for transportation and properly loaded.”
With the further proviso that:
“If the corporations cannot agree upon the times at which the cars shall be drawn, or the compensation to be paid, the said Commission shall, upon petition of either party and notice to the other, after hearing the parties in-tei'ested, determine the rate of compensation and fix such other periods, hav-ys reference to the interests of the corporation or corporations and the public co be accommodated thereby.”
By sections 22 and following, provision is made for hearing by the Commission of complaints of unreasonable or unjustly discriminatory rates (joint or otherwise), regulations, or practices, and for the fixiiig of maximum rates, and for setting aside unreasonable or discriminatory regulations, practices, and services, and the substitution of proper action in lieu thereof.
By sections 26 and following, provision is made for action in chancery against the Commission by any common carrier or other party in interest who may be dissatisfied with any order of the Commission of the nature of that above referred to, and the court is empowered “to affirm, vacate or set aside the order of the Commission in whole or in part, and to make such further order or decree as the courts shall decide to be in accordance with the facts and the law.” Either party is given the right of appeal to the Supreme Court of the state; and in all actions under this provision the burden is upon the complainant “to show by clear and satisfactory evidence that the order of the Commission complained of is unlawful or unreasonable, as the case may be.”
By the amendment of 1911 a new subdivision was added to section 7, as follows:
“(d) Every common carrier operating within this state shall receive and transport at reasonable rates any and ail ear load traffic offered for transportation under the usual conditions locally consigned between points in the ' same city or town and shall receive and transport at reasonable rates from any junction point or transfer point or intersection with another railroad in such city or town any and all such car load freight destined to team tracks or other sidings on any line operated by the delivering carrier, and shall deliver such car or cars upon such team tracks or sidings in the city or town where such car or ears are received from such connecting line when required so to do: Provided, that when delivery is requested which will involve the use of a private siding not owned or controlled by consignee, said consignee shall file with both receiving and delivering carriers written permission signed by the owner or lessee of such private siding authorizing the use of same. When the particular delivery desired cannot be accomplished owing to the congestion of cars upon such siding or team tracks, it shall be the' duty of the delivering carrier to notify consignee of such conditions and it shall be the duty of such consignee upon receipt of such notice to advise upon what other siding delivery will be accepted or whether or not it is desired that such car or cars shall he held awaiting the opportunity for delivery upon the siding originally designated as the destination.”
After the taking effect of the amendment of 1911, and on July 29th, the Grand Trunk Railway System filed its tariff (effective September 1, 1911) covering so-called switching charges within the switching or corporate limits of the city of Detroit, prescribing a charge of $5 per car for switching car load traffic from one to another industry having private sidings, or from one “hold” or team track to another “hold” or team track of the Grand Trunk Railway Systém, and imposing an additional charge of $3 per car in case of team track deliveries for the unloading of shipments received from or loading of shipments delivered to other carriers. Üpon
The Grand Trunk System thereupon published a new tariff, removing the discrimination by raising to $8 the.charge for movement of cars between team tracks and between industrial tracks and team tracks located on the Grand Trunk lines. Upon further complaint that the new tariff was unreasonable and exorbitant, the Commission on March 15, 1912, ordered the postponement of the effective date of the new tariff until April 29th to give the Commission opportunity to investigate the reasonableness of the proposed rate. Thereupon the Grand Trunk System issued a supplement to its tariff suspending the intrastate rates named in the tariff last referred to, and on March 30th published its new tariff, canceling all rates between industries having private sidings on the Grand Trunk System and hold or team tracks on that system, and all rates between junction points with other carriers within the corporate limits of Detroit. The Grand Trunk team tracks were thereby withdrawn from all intracity, intrastate, and interstate switching movements, except as to the Detroit & Toledo Shore Dine, with which it was under contract for terminal switching. On April 10th the Commission suspended the last-named tariff supplement until May 25, 1912, to give the Commission opportunity to investigate its reasonableness. On April 12th, two days after the making of the Commission’s order suspending the tariff of the Grand Trunk System canceling team track switching, the Grand Trunk Railway of Canada filed its bill in this cause, and on April 27th filed an amended bill. On the latter date the Detroit, Grand Haven & Milwaukee Railway Company filed, its bill. A temporary restraining order was made in each case, and is still in force.
An imperative obligation resting upon railroads doing business within this state, not only to furnish equal facilities for the transportation of passengers and freight to all railroads connecting therewith, but to make such track connections with connecting railroads as to permit the transfer from one to the other of loaded and unloaded cars designed for transportation upon both roads, has been too long imposed by statute and declared by the decisions of the courts to now permit of question. Such has been the settled policy of the state of Michigan for more than 30 years. By the amendment of 1879 (P. A. Mich. 1879, No. 207) to the General Railroad Act of 1873 (Pub. Acts 1873, No. 198), express provision was made for compelling such union and connection of tracks under order of the Commissioner of Railroads. The Railroad Commission Act of 1873 (P. A. Mich. 1873, No. 79) contained the provision above quoted in this opinion as contained in the act of 1909, requiring railroads at reasonable times, and for reasonable compensation, to draw over their tracks the merchandise and cars of any other corporation or individual having connecting tracks, with substantially the same provision for determination by the Commissioner of Railroads of the rate of compensation and the stated periods at which cars shall be so drawn, in case the respective railroads cannot agree thereon. Similar statutory provisions have existed ever since 1873.
In the year 1881, in a case in which a switchman sought to recover from a railroad company for injuries suffered in coupling freight cars received from another railroad, the Supreme Court of Michigan, speaking through Justice Cooley, said:
“The primary fact that must rule this controversy is that the Michigan Central Railroad Company is compelled to receive and transport over its*1016 road all tlie varieties' of freight cars which, are offered to it for the purpose and which are upon wheels adapted to its gauge. It is compelled to do so, first; * * * but, third, the statute requires it. It is provided by General Laws 1873, p. 99, that ‘every corporation owning a road in use shall, at' reasonable times and for a- reasonable compensation, draw over the same the merchandise and cars of any other corporation.’ The necessities of commerce require this with such imperative force that there could scarcely be a more flagrant bredch pf corporate duty than would be a refusal to obey this law; and the interferénce of the state to punish could hardly fail to be speedy and effectual.” ■ Michigan Central R. R. Co. v. Smithson, 45 Mich. 212, 221,7 N. W. 791 , 795.
In Michigan Railroad Commission v. Michigan Central R. R. Co. (1911)
The nature and classification of this service may best be appreciated by considering-the conditions to which it is sought to apply the orders of the Commission here in question. Detroit is a city of about 500,000 population. It has a large number of industries, and is served by a large number of railroads. For the purpose of facilitating the loading and unloading of freight, each of these railroads has established a greater or less number of team or “hold” tracks, and many of these industries are provided with sidings. These “hold” tracks, team tracks, and industrial sidings are within what are called the switching limits of Detroit. It is stated in defendants’ brief, and without contradiction, that the so-called switching district of Detroit extends for a distance of about 22 miles. Such tracks are necessary to prevent the congestion which would result from requiring all car load freight, both in and out, to be delivered at the freight depots of the respective roads, and in a very proper sense are shipping stations. In Railroad Commission v. St. L., I. M. & S. Ry. Co., 24 Interst. Com. Com’n R., at page 294, it was said of team tracks:
“They are analogous to freight depots in that they bear the .same relation to car load freight that such depots‘bear to'less than car load'freight.”
Setting to one side the question of the requirement of interchange of traffic between connecting roads, the statute, in our opinion, validly empowers the Commission to require local transportation by a railroad between its own shipping stations within a city, whether such plurality of shipping stations has been voluntarily established by the railroad, as here, or has been required by the Commission under its lawful powers, and provided such transportation is for such substantial distance and of such a character as reasonably to require a railroad haul, as distinguished from other means of carriage. Tt is also clear that a statute validly may, and that the statutes we are considering do, authorize the employment of such depots, side tracks, and team tracks of a railroad for transporting car load freight to or from the junction of such road with another road as, a substantial part of a continuous transportation routing, where such junction is outside the city limits. Does the fact that such junction is within the city limits necessarily differentiate the two classes of service so as to make the one a transportation within the meaning of the law and the other a mere switching service? And this in view of the fact that the distances between the city depots and tracks of a railroad and its intracity junction with another road may be as great as between such city depots and tracks and junctions outside the city, or as great as the average distance between extracity freight stations in a fairly populous section. Or does the fact that such freight movement begins and ends within the limits of a city necessarily characterize its movement between junction point and the station of receipt or delivery as a switching transaction rather than as part of an actual transportation between two termini; that is to say, between the place where the movement begins and the place where the movement ends? Upon principle, there seems no necessary distinction with respect to either of the two cases suggested. In either case the shipper is not necessarily doing more than exercising the right of routing shipments between point of shipment and point of delivery. The cases relied upon by complainants are not in our judgment decisive of the question here presented. In Stockyards Co. v. Louisville & Nashville Ry. Co.,
“It cannot be intended to sanction a snatching of the freight from the transporting company at the moment and for the purpose of delivery. It seems to us that this would be so unreasonable an interpretation of the section that we do not find it necessary to consider whether under any interpretation it can be sustained.”
But the basis of the decision seems to be that there was neither requirement of public law nor of private contract that the railroad company should deliver its own cars to another road, and that delivery would accordingly have to be made either by unloading or by the surrender of the defendant’s cars, and that the courts have no authority to dictate a contract to the defendant or to require it to make one. This objection again does not pertain to the case before us. The case was treated “as an ordinary case of stations at substantially the same point of delivery, and, therefore, as one to be dealt with as if they were side by side.” The court, moreover, said:
“It may be that a case could be imagined in which carriage to another station in the same city by another road fairly might be regarded as bona fide further transportation over a connecting road and within the requirements of the Kentucky Constitution.”
In Louisville & Nashville Ry. Co. v. West Coast, etc., Co.,
The case of Louisville & Nashville Ry. Co. v. Stockyards Co.,
In Railroad Commission v. St. L., I. M. & S. Ry. Co., supra, it was held by the Interstate Commerce Commission that a railroad was not required to switch a car containing an interstate shipment of coal from another line connection in the city of its delivery to its own team track for unloading by the consignee, there having been no tariff charge provided therefor; but that such switching could be required between connections with other lines and industries located on defendant’s tracks, as to which last service a tariff charge was provided. In the opinion it is said (page 295) :
“Switching to an industrial track is a service for which a regular tariff charge is frequently made by carriers and is over tracks and spurs as to which the cost of construction is generally borne in part by owners of the plants to which they extend. Team track delivery is a service rendered by carriers in receiving and delivering car load freight in connection with their own line business and is over tracks owned by the carriers. It is a service for which no separate tariff charge is provided, and which is analogous to freight depot service for less than car load freight. A freight depot owned and maintained by a carrier is a terminal facility for use in handling business from its own line and cannot, under section 8 of the statute, be used for handling business from other lines without its consent.”
It will be noted that this decision is based upon two propositions : First, that the statute does not provide for the service; and, second, that no separate tariff charge is provided. The first ground assigned does not apply in the instant case, because the statute expressly requires it. We see no reason why the Commission cannot, under the Michigan statute, require a tariff charge for
We find nothing in the propositions decided in United States v. Terminal Railroad Association,
■ The section of the Michigan statute here involved relates by its terms to transportation, and the defendants seek to sustain the validity of the statute with respect to the services in question upon the sole ground that they do in fact constitute transportation. While we do not say that there may not be cases distinctively of switching or team track delivery which do not amount to transportation, in our opinion, a service calling for the use of the so-called terminal facilities of a connecting railroad does not lose what would otherwise be the quality of transportation from the mere facts either that the movement begins and ends within the switching or corporate limits of a city, or that the transportation is only between an intracity junction and team track or side track. Whether a given service is delivery as incidental to and as a part of a transportation in which the delivering carrier has substantially participated, or is a delivery incidental only to a “transportation” which has been wholly performed by another carrier, is, at the last, a question of fact, to be determined in the given case as it may arise.
The conclusion we reach is that the imposing upon complainants of the duty of transportation prescribed by the statute, as we have interpreted it, is not sufficient to constitute a taking of complainants’ property without due process of law.
‘'Nothing in this act shall be construed as requiring any railroad to give the use of its tracks or terminal facilities to another railroad engaged in like business.”
It is urged that to require a carrier to receive or transport over its tracks the merchandise and cars of any other corporation or individual having connecting tracks is to require it to give the use of its tracks and terminal facilities to another railroad engaged in like business, and that the act is thus so inconsistent and uncertain as to be utterly null and void. We think the two provisions in question can be so construed as to give effect to both.
The provision in subdivision “a” above referred to was contained in the Act of 1907, construed by the Supreme Court in Michigan Central R. R. Co. v. Michigan Railroad Commission, supra, in which case (although the provision in question in subdivision “a” was not referred to in the opinion) the court upheld the provision requiring interchange of traffic and track connections, including the transporting of cars from another railroad. Moreover, subdivision “d” was enacted by way of amendment subsequent to the original adoption of subdivision “a.” If either provision were required to give way, it would seem that the later would prevail.
5. The orders entered by the Commission are denounced as void because made in proceedings to which complainants were not parties. Neither complainant is made a party to the proceedings in which the orders of February 6th and March 15th were made; the only respondent being the “Grand Trunk Western Railway Company.”
It follows from what has been said that the application for interlocutory injunction should be denied, and the existing restraining order vacated. As the questions presented are important and review may be desired, the formal entry of the orders in accordance with this opinion will be withheld until September 5th next, to give complainants opportunity to present such applications as they may desire for a continuance of the restraining order pending appeal (under the rule stated in Hovey v. McDonald,