Louisville & Nashville Railroad v. United States

TERM, 1916. 242 U. Si Syllabus. COM- RAILROAD & NASHVILLE LOUISVILLE OF AMERICA AL. v. UNITED STATES PANY ET ET AL. COURT OF THE UNITED STATES THE DISTRICT

APPEAL FROM -DISTRICT OF TENNESSEE. FOR THE MIDDLE Argued 13, 4, December 1916. October No. 290. 1916.Decided say induce the court to that there could circumstances which Under n Central, purpose to discriminate the Tennessee been no have planned companies and matured an ar- appellant railroad two which, interchange of traffic at Nashville stated rangement for the connecting following form, terminal, viz: took generally, consisting tracks, yards, depots and other main lines and their by part appellant railroad com- property, owned railroad by part appellant Terminal severalty, and in held as to title panies in joint tenure, placed it to them was Company, but leased un-. unincorporated organization called management of an der trackage along connecting Terminals,” with additional “Nashville respective railroads from their main and two contributed Terminals,” control of the two 'The under “Nashville side tracks. operated companies, this collec- maintained appellant railroad served, .switching limits so con- within the property and thus tive interchange the of the two roads at Nashville. stituted, traffic operation ^apportioned maintenance and was expense of The total companies on the basis of the railroad the two constituent each, handled for and no and locomotives total of cars number - appellant against either. The Terminal switching charges made were appellants; origin, of the other two Company was, in a creature was obtained di- it held in and about property which through aid, & rectly indirectly financial Louisville stock, all its as well as of the stock Nashville owned 71% Chattanooga. Commerce Commission The Interstate Nashville & refusing to appellants to abstain froin switch directed interstate terms as Central on the same competitive traffic for Tennessee exchanging kinds on the terms for noncompetitive, both same while for the other, to establish rates and ordered them Central interstate traffic for Tennessee con- all themselves. temporaneously maintained between NASH. R. R. v. UNITED STATES. Argument Railroad Co. for Louisville & Nashville 242 TJ.S. developed circumstances, fully opinion: as more Held, these under practical purposes (1) for all the effect That appellant companies railroad owners make the two the terminal. they

(2) Interstate Act were as such That Commerce protected degree in joint in the as would be an owner owners severalty being required of their facil- give to the use engaged in like business. ities to another carrier (3) refusal to switch the Tennessee Central would That their mere for discrimination.

not an unlawful be switching through single agency, described, (4) as That the method against that did discrimination railroad. not involve unlawful (5) That, consequently; order erroneous the of the Commission was enjoined.

and must be (6) lawfully appellants might com- But that discriminate between long noncompetitive goods; and,

petitive and so received require to the could them receive the former latter Commission compensation, taking upon being paid account their reasonable into outlay pecuniary on the terminal. Rep. 258; 273, reversed.

227 Fed. id. is in

The case stated the opinion. Mr. with Mr. L. Jouett, Henry Stone, Edward S. whom Mr. A. Colston and Mr. B. Keeble on the W. Jno. were for the Nashville Railroad briefs, Company: Louisville for, through agency Each pays plaintiff performs, incident its car between service interchange and point industry, the case car is hauled or outbound over its every which inbound n tracks. Accordingly neither switches for other nor refusing the Tennessee Central discriminates for it. switch any held to If should be constitute one of switching service, rendered the constituent sort it would not an other; unjust companies .constitute for discrimination the reason that the circum- undue or conditions under which service rendered stances existing necessarily from those totally dissimilar are TERM, 62.

Argument for Louisville & Nashville Railroad Co. 242 U. S. handling for cars the Tennessee connection In pursuing Central. discrimination the Com- theory logically into declaring,, so, led mission must for the plaintiffs switch Tennessee Central at con- fiscatory rates, cost, any for without return on the is. illegal used. This is because constituent get nothing would or companies equalize the interest property, nothing on their return for overhead ex* necessity charge being penses. indefinite— cost of service —is another demonstration the im- 'the in addition to practicability, illegality, the. Com- mission’s theory discrimination. no

Certainly authority reason can for al- be-found ,else lowing the Commission to substitute something gives facility which carrier refuses to one and give joint arrangemént to another. If the be plaintiffs a of facility, the denial which to the Central Tennessee constitutes a discrimination under 3 of the Commerce § Act, way-to then the discrimination is-to remove- to plaintiffs arrangement order ’discontinue the or else to admit the Tennessee Central to it proper things, But are two of which terms. there either will latter, from prevent validly making the Commission (1) a and circum- requirement: dissimilarity conditions no unjust in which case there is or undue discrim- stances, (2) prohibition or of some law. While either ination; us, happens barriers is sufficient for that these two dissimilarity both in'this cáse. The in-conditions is exist fully finding and hence the Connnission’s established, is unsupported by discrimination as a fact substantial the end of 3 is that proviso evidence. The at the law § forbids, to to plaintiffs Commission order conclusively to physical Central use admit the Tennessee tracks. terminal imposed upon the express is an limitation proviso

This ordering fácil- equal in the power matter Commission’s 63 & R. R. UNITED STATES. NASH. v. Argument for Louisville Railroad Co. Nashville 242 S.U. , short of one road always stop requiring must ities. It “tracks and physical.access another road afford a words, right rail facilities.” In other money or (whether railroad other road to to another sell of its thing) physical road, use trackage rights other incurring that trackage that is without rights, is railroads, thereby ratified obligation similar other L. & 37 Co., & Co. v. N. R. R. preserved. Bridge K. I. Ry. & Co. v. Line U. N. Rep. 567; Oregon Fed. Short (affirmed by Co., Rep. 51 Fed. 465 Ry. Northern Pacific Rock M. R. Co. v. Little & Rep.); the C. C. A. in 61 Fed. Rep. 400. Fed. Co., I. M. & Louis, Ry.

St. ,to foregoing cases, in the proviso This 3, construed it is a are aware that mooted amended. We has never been prevent the Com- proviso serves whether question switching, independent question mission ordering presented. question discrimination,- but no such here ground being the sole case, This is discrimination Commission’s Besides, the Commission de- order. 679, I. C. C. Switching Case, Louisville cided switching, except power it had no to order discriminatory discrimination; in that case case of rights. switching, trackage not granting act was not & “device” plaintiffs Commerce. Regulate Act to evade the order where Commission’s This court can review the wrong. undisputed facts is its ultimate conclusion Co., R. R. v. L. N. Interstate Commerce Commission 227 U. S, R. & R. (L. Coal Case N. in

The decision the Nashville affect this 1) does not States, U. S. United 238 Co. v. case. right of. com- two distinctly

This court has declared but their “common for unite terminals panies to their Railroad Asso- v. Terminal United States use.”’ exclusive S. 383. Louis, 224 U. St. ciation of TERM, Ry. Argument Nashville, Chattanooga fos 242 U. S. & St. Louis Mr. Walton Wallerj Mr. Claude R. Moore and Mr. Gwathmey p, Frank W. brief for filed Nashville, Chatta- nooga & Louis Railway: St. interchanging

These are not traffic; each is handling own delivering industry its traffic and it to each through joint agent within the terminal district a to be sure, expense; but at its own neither switching charges has other; switching no charge has been filed with the Interstate Commission; plan Commerce operation slightest does not bear the to a relationship, reciprocal switching arrangement, which case road one performs a service another at its its own on expense, own track, through switching own crew for a which is charge paid by either shipper consignee or or by the carrier for which the switching is done. does not principle The case within the announced come Pennsylvania Co. v. United 236 U. S. States, where a railroad has company opened its terminals one car- it is unjustly discriminatory open rier not to its terminals on the same terms to carrier another similarly situated. same, arrangement is essentially the both roads operating jointly terminals, acquiring entire as each having exchanged trackage rights the same arrangement the other. Such an contrary law, not it unjustly nor is a discriminatory towards third railroad deny arrangement. it participation such an illegality is no in the companies There two railroad ac quiring operating jointly, given point, at common, facilities exclusive, but use. United v. States Terminal R. R. Louis, Association St. S.U. 383, 405. Commerce,

The amendment to the Interstate does Act not prevent giving railroad company trackage rights to Pennsyl one road and denying another. vania Co. v. United States, supra. legal one,

If the prohibited is a by any UNITED & NASH: R. R. v. STATES. 65 (cid:127) n Argument for the United States. 242 U. S. Regulate Commerce, then provisions the Act 3 is no discrimination the sense unjust

there § Act. impossibility dealt with the com- argument then destroying without the terminal with the order

plying that and affirmed the circum- entirely, surrounding Company the Tennessee Central stances existing appel- entirely those are dissimilar lants. Underwoodfor Attorney

Mr. the United General Assistant States: involved (a) principles not settled the only

This court has (Pe U. States, United Company v. nnsylvania (6) principles those the facts applied has also 351), but Louisville & Nashville Railroad presented by this record. States, United 238 U. S. Company v. again announced, In the is

(o) case, former is ques- that discrimination cases, citation of numerous of the Commission of fact for the determination tion to that involved (p. transportation.similar 361); Regulate Act comes 3 of the within this case 363-364); require (pp. as amended Commerce without taking interchange is such require the 369), of law and does not process (p. due or terminal facilities of-its tracks give carrier to use 366, (pp. in like business engaged to another carrier 369). Railroad the Louisville & Nashville In the case of

(b) the record 238 U. S. States, v. United substantially court were issues before the the. there decisive -judgment and the

presented casé, in -this only reports former case that in the here. It true Comrmssion record court, while the before this- were of the Commission the reports contains both now Nevertheless, evidence be- it. taken before evidence TERM, 1916.. Argument for the Interstate Commerce Commission. 242 U. S. Commission and findings fact fore were sub- the same in both cases. Not stantially only was the issue advanced made and upon by appellants now insisted in case, as will be but, former seen from an examination of the record, given was careful consideration the by Commission, Court, District this court. the The respective interests in the terminal 'the joint agency and its method operation in in report were described detail both the of the Commis- and the decision of the District sion Court. Louisville & Nashville Railroad v. United Company States, 216 Fed. Rep. 672, ¿f adopted This court the statements of facts the Com- , Court, using

mission and the District them as the basis of its decision.

Mr. Needham, Charles W. with whom Mr. Joseph W. was brief, Folk on the the Interstate Commerce Com- mission: findings fact, Commission’s if based sub evidence,

stantial are conclusive. The question unjust discrimination, as in presented is. one case, of fact, though even the evidence may undisputed. be United Co., States v. Louisville & N. R. U. 314; Pennsyl S. 235 vania States, v. United U. S. 351. Co. 15 of amended,

Section the as act, empowers the Com- mission deal with preferential discriminatory regu- carriers, lations of as with rates. well as Int. Com. Com. v. Illinois Central R. Co., 215 U. S. 452.

The finding of Commission the that the Louisville and the Company Nashville were effect other switching supported by substantial each evidence.

It is that, while Louisville Company and apparent Company, Nashville after the inauguration of the joint arrangement, as continued theretofore to perform a- UNITED R. R. STATES.. O.

LOUISVILLE '& NASH. Argument for Commission. Commerce Interstate 242 U. other, service, that after for each service switching Terminals, -of the Nashville was rendered establishment both, instead agency individually common by previously. other, for the that the Nashville Terminals contend acts Appellants of the carrier agent performing instance as every cite, in service, support contention, line apportion- observed practice Terminals expenses. joint agency But if opérating ment of its exist, switching the carrier the traffic did on its line would bill service industry words, the road haul. In other line making carrier merely service pays proportion carrier of. the performed by the Nashville instead Terminals which to the .pay it otherwise would switching charge joint then, agent, that The performing carrier service. perform held which would must be to act for carrier arrange- joint switching service the absence ment. n the Louisville The finding Commission that in effect were the Nashville Company and by- the supported for other decision switching each States, R. Co. v. United in Louisville & N. court in- The material facts record U. 17-20. 238 S. although in detail essentially same, cases are two more here involved' question But so far as the in this record. noth- “discloses says the Commission is concerned conclusion.” change our former ing they individually admit that were Appellants virtually if. at thé same time and under other, , like perform similar refusing service conditions their discrimination Central, Tennessee constitute, of the act. a violation would latter carrier such a discrimination when justify How, then, can agent? common by effected in fact ter- if Terminals were the Nashville Again, .a TERM, 1916. Argument for the Interstate Commerce Commission. 242 U. S. minal as that company, expression generally under it could stood-, scarcely deny its exclusion of the Tennessee Central from privileges extended to the Louisville Company and the Nashville Company would constitute unlawful an discrimination. St. Louis, S. & P. R. Co. P. & P. U. Ry. Co., v. 26 I. C. 226, C. 235 -236 .

Appellants may reasonably complain if agency created them for the purpose performing terminal services is required provide without discrim- ination reasonable, proper, and equal facilities to all car- riers itof requesting performance of such services. The fiction of a separate corporate entity will be disre- whenever, garded it is insisted protection as a to an illegal In re transaction. Rieger, Kapner & Altmark, Fed. Rep. Miller & Lux v. East 609; Side Canal & Irri- gation 211 U. Co., 293; Lehigh Mining & Mfg. Co. v. Kelley, 327; 160 U. S. Gas Co. v. West, 50 Iowa, Booth 16; v. N. Y. Bunce, 33

The Nashville if Terminals, given effect appellants claim for it, would constitute a monopoly; and the Com- mission refused to properly give it that effect.

This is not a proceeding involving the establishing of a through The here is issue one of discrimination route.. only. And clearly this court decided that provision in 15 not apply did in such a L. case. & N. R. v.Co. United States, 238 U. S. 1. power Commission has require removal

discrimination in guise may whatsoever appear.

The discrimination is also a discrimination against the shippers served the by Tennessee Central and against the City of Nashville. Central Michigan R. Co. v. Michigan Railroad Commission, U. 615, S. 632 In Louisville R. United & N. Co. v. States, 1, 238 U. S. court held that joint arrangement between appellants qase. principle did not take the out fin announced & R. v. UNITED R. NASH. STATES. 69 -(cid:127) (cid:127) Opinion U. the Court. Pennsylvania States, Co. United 236 U. S. and 351, v. order there under considera Commission substantially was as the order tion, which here involved, give did require theuse.of terminals to the Tennessee Central. opinion delivered the'

Me. Justice Holmes' court. appeal decree,

This is an from made three by judges^ Court, in the District denied a sitting which preliminary an order of injunction enforcement ap- and dismissed the Interstate Commerce Commission 258, 227 Fed. id. 273. See 33 petition. Rep. pellants’ Interstate Commerce report I. C. C. the ap- order complained required Commission. The Railroad Company, the Louisville & Nashville pellants, and Chattanooga & Louis Nashville, Railway St. Terminal to desist Company Louisville Nashville and they practice “from refuse maintaining whereby abstain competitive traffic to switch interstate at Company Central Railroad tracks of Tennessee non- on the same terms interstate Nashville, Tenn., kinds said interchanging both competitive traffic, while of. other, practice as said on the traffic same terms to be said un- report is found the Commission in its ordered, further It discriminatory.” justly Nash- Company, Louisville Railroad “The & Nashville Louisville Railway, and Chattanooga & Louis ville, St. &. are be, hereby Terminal Nashville May 1, on before establish, required notified Commission Commerce notice to the Interstate 1915, fipon filing 30 days’ not less than general and to the public 6 of the section prescribed manner posting maintain and thereafter to regulate commerce, and act to traffic to and from the to the of interstate apply . 70 OCTOBER'TJERM, 242 S. Opinion^of Court. U.

, Railroad at Company tracks the Tennessee Central which shall not charges rates and be dif- Nashville, said maintain with contemporaneously ferent than re- they shipments respective to similar to and from their spect tracks in as said relation found the Com- city, said to be report nondiscriminatory.” mission its said as matter of law that appellants relations contend charge them discrimination that any exclude a to extend to upon is based refusal the Tennessee only advantages Central enjoy. road n Theorder is based discrimination and is limited interchange by the between the appellants duration and the discriminatory,' question argued found to be n only is the in the case. question There is- to consider relations necessary fore between the left on appealing railroads that were one side in Louis ville R. Co. United States, & Nashville v. 238 U. S. R. 1, 18.

The Louisville & Nashville traverses from- Nashville south, Chattanooga north to & from west Nashville porthwest Central from to southeast,. the Tennessee east. all are for Nashville traffic. In They competitors .1872, contemplating possible Station, Union the Louis- ville (cid:127)& acquired rights the Nash- trackage Nashville Chattanooga ville & that connected its northern and south- separate), ern city (previously terminals in the It Chattanooga. terminal of now owns the Nashville cent, In, of the stock of latter. 1893 seventy-one per Company these Terminal two roads the appellant caused Ténnessee, be laws organized géneral under right & Nashville let The Louisville prbperty. In owns all stock of this 1896 the two roads company. several to the Terminal respectively let depot properties neighborhood original in the grounds Chattanooga years, of the Nashville & what termed shortly made the Terminal afterwards R. v. & NASH. R. STATES. . LOUISVILLE .UNITED n Court. Opinion U. 2^2 same and subsequently acquired lease like It the two roads for a term. covenanted jqintly necessary buildings, all passenger construct freight and annually facilities, the roads to pay tracks and cent, keep four per cost, as rental of the actual and to the then made in'repair. Company properties The Terminal the the city contract with construction a¡'Union a and, performance, the roads the Station, guaranteeing two the tracks con- completed 1900; construction was in. the those, but not with with those two roads necting the as Company The Terminal Tennessee Central. the large additional part improvements purchased of" the n funds, the and the advancing two roads properties, the million for three dollars executing mortgage company of the bonds .were guaranteed by $2,535,000 the roads. the proceeds repay and the roads. issued used v being time August 1900, roads, two at that On Nashville, two entering arrange- roads made only They they operated. ment -under which have since made organization an called the Ter- unincorporated Nashville operate which was to maintain and the ¡property minals the two roads let to Nashville jointly Terminal miles main track 23.80 also 8.10 & by the Louisville Nash- of side track contributed miles side track 12.15 miles main and 26.37 miles of ville and Chattanooga. agree- & contributed Nashville of control a board con- provided between the roads ment managers of the general of. sisting superintendent the immediate' superintendent having roads, the two officers, The total &c. appointing control and under apportioned expense of maintenance and operation the basis of total roads on two monthly for each. of cars and locomotives handled number There on tracks’of charge to or from locations switching no on switching within the Nashville terminals limits The Ten- over either road. freight from to Nashville TERM, Opinion Court. U. S. Central tracks nessee now connect those of the Nash- ,the Chattanooga Shops at ville Junction in western city, within the switching limits, section and with of the Louisville & Hill, those Nashville at Vine outside' limits just city outside on ' south. It should December, be added that 1902, a further agreement was made purporting to the lease to modify jointly by excluding the railroads from the came from them and remitting the roads to respectively, subject their several titles stood lease, before only mortgage, to the changes with some other that need not be partial change joint tenancy mentioned. This back to titles several does not affect equal- the substantial ity roads, the contribution of the two and the of tenure property purchased considerable by unchanged. Terminal was left that Another matter seems immaterial'to the case before us is that since connection between the Tennessee Central appellant and the roads the latter have inter- changed noncompetitive traffic with former, but the Louisville & Nashville refused to competitive switch has except traffic and'coal at local its rates and the Nashville & Chattanooga has refused switch it all. to at The switch- coal ing by was dealt with this court in Louisville & States, Nashville R. R. v.Co. United 238 U. S. 1. But the case now is before us not concerned with the effect of the carriers having open thrown the terminals many to - branches of traffic. 238 U. 18. It only arises upon the question supposed the discrimination to arise from the other, to relations we appellants’ explained— have a but not question grazed hit the decision U. S. in 238 p. See

If the parties purpose intent of the this, material was in a case like obviously there was none to against discriminate the Tennessee Central That road. v. UNITED STATES. 73 R. & NASH. R. Opinion U. S. Court. formed,

road did not enter Nashville when the plan although had a appellants and the two common interest that competitors public interest also was which —an Regu- the Act to City Nashville shared. By § as it Act “shall not be stands, late Commerce now give requiring construed as such common carrier any carrier the use of tracks or terminal to another facilities if carrier like business.” either engaged Therefore not be found owned and used this alone could merely the Tennessee Central discriminate or from is a it, to switch for that to move car refusing interchange. starting point a final or from or to a point be that owner would conceive what is true of one We- right if are joint true of two and we equally owners, practical all narrowed whether that not for question They in which stand. purposes position terminals, jointly portion do still hold a considerable terminals manage the purchased They with their funds. way as whole and in them in the short deal with Of part. every would if their title was they original tracks respective do not course own perhaps and it is matter for appreciation jointly back argument change whether the precise defies more changed rights of those tracks several tenure paper in this modification cannot see parties. We in -hand. Neither point to the any change title material severally but the tracks, use of its paid road is single into a brought and the held are jointly owned used and are contributions substantially by equal whole as occasion requires. each by order 'upon to the uphold fact relied principally own doing of each road is that instead Commission switch they in common

switching over the terminals used doing is for each and it therefore jointly, said (cid:127) cannot to a third. We that it refuse other a service cannot by reserved to their own terminals rights believe that the TERM, '74 Opinion Court. 242TJ. S. to the law are a be defeated such distinction. take by We it that a use for purpose several the roads would by open to If no door a third road. the title joint were strictly \ in throughout roads, we can no ground see two ' prejudice in the of the more adoption economical method a single agency both, paying substantially as it if it would did its own work But, alone. as we have indicated, large part a of the terminals is in and substance the whole is held and as used one concern. What is done .seems to reciprocal us not but switching use of in joint terminal the natural and practical way. It is objected that upon way this view to opened get a. reach beyond the statute and the Commission. But in very meaning is- line the law that right touch each wrong get other that anyone may as close line he can if keeps as he right side. And on. further, the distinction pretty plain seems between a bona joint ownership or arrangement so nearly approaching fide joint ownership grant as and the this, of facilities for the interchange of traffic that should be extended to others on equal joint outlay terms. The of the two roads pro- has duced much than a more it arrangement, has produced a common and peculiar interest the station and tracks even when the latter are not owned. jointly In opinion our the order was not warranted law; but overturning single point discussed we do so without prejudice making Commission’s orders prevent the discriminating between com- petitive noncompetitive goods, long so open as they to the latter, doors the appellants entitled, being to, compensation, taking reasonable into account expense of the terminal built have paid for..

Decree Injunction issue, without prejudice reversed. orders the Interstate Commerce Commission further .opinion. stated STATES; R. v. UNITED R. & NASH. dissenting. JJ., Clarke, Brandéis, and Pitney, Day, 242 U. S. Mr. Jus- whom concurred Pitney, Justice Mr. n and Brandéis, Justice Justice Mr. Day, tice Mr. dissenting. Clarke,

(cid:127) and, of the court, opinion in the I am unable concur of the decision far-reaching effect in view it duty deem a to set interests commercial country, dissent. my grounds forth the Commission found matter Commerce Interstate

The two 84): “Defendants railroad I. C. C. (33 of fact [the interchange ¿ppellants] unquestionably now companies, without distinction between other and traffic with each of both traffic'. cars noncompetitive and competitive individually owned terminal over the are roads moved other, from'industries on other to and tracks of and available industries rendered equally both lines are is movement, is true, one. The exclusively on it located road over whose ter- by the not performed immediately is it performed is but neither performed, minal tracks moved. It road whose cars are immediately by the . roads, being and that joint agent both performed by a essentially opinion so, we are and ac- switching arrangement reciprocal as a the same interchange for the facility a. cordingly- constitutes forwarding, and deliver- between, receiving, traffic lines, respective ing defendants’ section 3 meaning paragraph of the second within the the, . . We act. Commerce -Act.] [Interstate they agree with defendants’ contention have can not have, if exchanged trackage rights. But even merely act, 3 of the ‘facility,’ the term as used in section we think trackage rights over terminal reciprocal also includes being advantages shippers tracks, consequences accruing from reciprocal with those identical arrangements.” sitting (227 Rep. Fed. judges three Court,

The District TERM, JJ., dissenting. 242'U. S. Brandéis, Clarke, Pitney, Day, consideration, reached 258, 269), after careful the follow- ing operation jointly conclusions: “The carried on the & Chattanooga & Nashville and Nashville Louisville agreement Terminals is not a mere exchange under the trackage rights of and from industries on respec- tive lines at under which does of Nashville, each all its switching own at Nashville and neither for the switches is, It on the in substance and contrary, effect, other. an switching under which the entire service joint for each railroad over the and separately owned is performed jointly by both, operating tracks as principals their, Terminals through joint agent, as each railroad, of joint such principals, performing one hence through switching service for both itself agency such and the other . . its And, railroad. viewed fundamental aspect, and considered with reference to effect, ultimate we concur in the conclusion of entirely the Commission that switching ‘is operation joint essentially such the same as a .reciprocal arrangement,’ constituting a facility of interchange for traffic the lines of between the two of railroads, meaning within the second paragraph of of section 3 the Interstate Commerce Act. That not separately railroad does other, switch for the but that such'switching operations are carried on jointly, not, in our material. If it all opinion, were, reciprocal switching operations carried on two railroads at any connecting point put of several carriers could be easily beyond the act, and its purpose reach of remedial defeated, by the simple employing device of agency to do such re- ciprocal controlling switching. The test of the statute, however, lies of in the nature the work done,.rather than or employed device particular names applied engaged in it.” those I agree.

With these views argument Elaborate is made in the effort behalf to show that of operating method the Nashville Terminals is not “re- R. STATES. 77 & R. v. UNITED LOUISVILLE NASH-. JJ., dissenting. Pitney, Clarke, Brandéis, Day, 242 U. S. a- definition switching” within certain narrow ciprocal real point; question term. an immaterial This interchange facility it constitutes a being whether respective appellants, lines of traffic between forwarding delivering receiving, for the connecting meaning lines, within (c. 380), Act so that 104; Stat. Interstate Commerce Cen- the-patrons it be Tennessee must rendered & terms of the Louisville Nash- tral with those equal Chattanooga. I cannot doubt the Nashville ville and this bears character. reads it shall be section as follows: “Sec. That subject to any provisions common carrier unlawful give or unreasonable any act to make or undue com- particular person, advantage any preference or corporation, locality, any particular or firm, pany, or any respect whatsoever, in to traffic, of description firm, person, company, corporation, subject any particular of to any particular description traffic, any or or locality, any or in prejudice disadvantage or undue -unreasonable respect whatsoever. subject provisions to the

“Every common carrier of. respective powers, afford shall, according their this act facilities the inter- reasonable, proper, and equal all respective lines, and of traffic between their change delivering receiving, forwarding, passengers and lines those several and and from their property their in and shall not discriminate connecting therewith, connecting but this lines; such charges rates common any such requiring not be construed shall tracks or terminal facilities the use of its give carrier like business.” engaged carrier in to another of this paragraph It is I that in the second clear, think, meanings. two employed is in word “facilities” section the or operations occurs, it means those acts first Where interchange traffic; or easy facilitate render TERM, dissenting. Day, Clarke, JL,. 2-12ÍJ. S. Pitney, Brandéis, “to while, clause,- give final in the use of its or tracks facilities,” the words facilities” terminal “terminal áre a figurative in sense employed equivalent and as to “ter- This properties.” minal from the obvious association tracks and together of subject as things facilities same 'And the words are used in the sense in use. Stat; to 1 of amendment (c. Act 3591; 34 § by which the definition of 584), the term “railroad” was as to include 'expanded so “all switches, spurs, tracks, and terminal facilities of every kind necessary used or transportation persóns or designated ” herein. nothing

There order the Commission now requires under review them,, or either the Nashville agency, Terminals, give.the use of or terminal facilities to tracks Central, Tennessee or in physically any either other sense, meaning within the final clause of 3. It them requires merely to inter- (cid:127) change competitive traffic to and interstate; from the tracks Tennessee Central on the same terms as interstate noncompetitive traffic so long as both they interchange of traffic kinds with other on the same terms; and also to establish and apply to the interstate traffic from the Tennessee Central rates charges to.and different from those that main- contemporaneously tain respect to similar shipments as between them- Undoubtedly selves. expenditures made by appel- lants the construction terminal property, so far as property is used in interchange switching, is an element to be taken into consideration in fixing the of amount the charges. And the same is true respect the value of the separately owned tracks of so far as appellants, necessarily used in mutual inter- changes. Nash-, practice

The of the Louisville & Nashville the ville & in Chattanooga refusing interchange competí- p. UNITED STATES. 79 R. & NASH. R.. JJ.; disseáting. 242 S. Ü. Pitney, Day, Brandéis CijArke, the traffic with noncompetitive as the terms on tive kinds of interchanging both Central, "while Tennessee by found Com- themselves, traffic as between the discriminatory, there no being unduly be subr mission tíor intercliange, in difference the conditions stantial com- as competitive increased cost of any interchanging '' noncompetitive traffic. pared with in the terminal joint The tracks included main and 23.80 miles appellants include 8.10 miles & Nash- owned Louisville of side tracks separately by of side tracks- 12.15 and 26.37 miles ville, main mijes Chattanooga, & by Nashville separately owned & Louisville Nashville by tracks yard owned some by stock is owned entire Company, Terminal whose conceded that It bemay Louisville & R. R. Co. Nashville from the Terminal the lease virtue December, in railroads, as modified appellant even property a tenure of the joint sense there-remains some my view, question But, of the Terminal Company. m aside from'the entirely ownership property charged and found real The discrimination point. Commission property use of terminal not much so services; and for such interchange performance as in the in the community óf interest discrimination nor excuse. justification affords neither performance of those far non-discriminatory So as the Central cars from Tennessee services requires tracks of shall be admitted Louisville Chattanooga and to & Nashville and the Nashville interest, companies have tracks which these' as them- appellants have, this is so because only the Tennessee regards traffic from selves, and also use. public to thé open terminals Central, thrown their fal- upon the rests essential argument are, sense, facilities in an absolute lacy that the terminal all But like they, for ali purposes, private property. TERM, 1916. 80 JJ., dissenting. U. Day, Brandéis, Clarke, 242 Pitney, are, with fine, respect other the railroad to parts their public. use, devoted the benefit And final protects while it carrier to a certain clause § use of its terminal separate property, does extent its protects particular than It use of so otherwise main line of railroad. “Tracks” are mentioned together and the rule facilities,” with “terminal is applied to both. fact a carrier owns own that its terminals no for discriminatory is more an' excuse treatment of its n patrons performed respect therein than services of the main is an for its line excuse discrimina- ownership respect tion with to transportation thereon.

It is if said either that were the sole appellants owner used properties question and it could alone, not be deemed discriminate them the Tennessee Central because of mere refusal to switch it in for Of if interchange traffic. course it refused connecting all carriers alike could not be held dis- crimination. But liberty whether it would be at to refuse to switch for the depend Tennessee Central would upon circumstances; for instance, upon whether Interstate Commission, Commerce pursuant authority under Stat, 15 of the Act (c. as amended in 1910 36 309; 552), § should establish the through route, (with- two lines as a that) out should determine adequate evidence the refusal of switching privileges was a failure to afford reasonable proper facilities interchange traffic connecting between the lines 3. Car under inter- § change connecting lines made the 1910 1 amendment of the Act a positive duty part on the of the. carrier, even without action by the Commission. Stat. 545.

I deem ait most material al- fact ready interchange noncompetitive Ten- traffic with the Central, upon nessee terms like those which upon, ' both interchange- competitive noncompetitive traffic R. R.- v. & NASH. STATES. UNITED Day, Pitney, Brandéis, JJ., and Clarke, dissenting. S.U. So far method doing between themselves. rights they interchange trackage amounts have an thrown use of voluntary open action their by far traffic, all branches of so as excepting to terminals traffic over the against discriminate Tennessee competitive has so, but the Commission only expressly Central. Not 82) (33 I. C. C. that the Louisville & found Nashville will competitive coal and-other traffic to competitive switch Central, interchange being and from the Tennessee at Junction over the Shops and rails usually effected Chattanooga. & But & the Nashville Louisville local as if for upon charging insists rates trans Nashville Overton, Nashville and Tennessee, between portation per $12 $36 from car, which and are therefore amount a time in the Nashville Chat prohibitory. effect For to perform manner the same in like offered switch tanooga and from the Tennessee Central at ing service to its local a tariff December rates,, published 1913; and local that such rates would expressly providing apply to competitive traffic from and destined the Tennessee was This, however, shortly Central. revoked after present in the case was filed. There is complaint a here plain, discrimination, found very Commission to be merely against discrimination, an undue the Tennessee a “particular but description traffic,” Central 3. distinctly prohibited by The conduct of ap which § to the a quite analogous making of discrimina- pellants ' charge carriage any in not because of tion difference cost of in the or in the the service inhering goods rendered them, in but the mere basis transporting a discrimination ownership goods; condemned v. Com. Comm. Lack. & Del., Int. Western court 235, 252. U. S. R.,R. interchanging traffic system

The present August, 1900, year or two was established was Tennessee line constructed before Central (cid:127) TERL£, JJ., U. S. Pitney, Day, Brandéis, Clarke, dissenting. '242 Emphasis into Nashville. was laid upon this, argument, suggestion refuting that could be deemed “device” avoid the discrimination clause of 3 of Interstate Commerce findings Act. The (331. show, Commission however C. C. 81), that when the Central Ténnessee entered only after Nashville strong Nashville; the Louisville & opposition -(p. 79) prior the year people 1898 the of Nashville had become desirous facilities, particu- better terminal larly of a passenger depot, union and an ordinance author- to, izing a Contract that end between the City Terminal Company was proposed, a proviso containing the terminal facilities should also be available on an basis equitable might to railroads which be built in the future. The present appellants opposed this proviso an omitting ordinance it passed, was but was Vetoed by on account of mayor the omission. It clearly enough appears, therefore, agreement of August, -1900, pf was made by view the of probability some entering other road Nashville thereafter.

But it otherwise, were the result should be same. obligation The to avoid discrimination and afford “all proper, equal and facilities for reasonable, the inter- change not any of qualified by rights of priority. traffic” The road new is a servant of the public, equally subject others; duty to the same and entitled, for its patrons, demand reasonable and impartial performance reciprocal carriers that duty preceded it in the field.

In opinion the my present controlled by case our decisions between the parties .former case (Louis. & Nash. R. States, R. v. United 238 U. 1, 18, 19), S. and Pennsylvania the earlier of case Co. v. United States, 236 U. 351, seq. 366 et these many In cases the same arguments that are here advanced were considered and overruled the court. The by latter case concerned the v. UNITED STATES. 83 R. NASH. R. Pitney, JJ., dissenting. Brandéis, Clarke, Day, 242 U. S. traffic between industrial carload switching interstate switching limits at within points and junction tracks Pennsylvania Pennsylvania. Castle, New of doing such practice to sustain undertook refusing railroads while to do it $2 car three per at ground & Pittsburgh, upon the Buffalo, for the Rochester terminals and the fact that the ownership of its sole either at New position, other carriers were three it reciprocal advantages offer elsewhere, Castle or switching done for them in fully compensatory for & Pitts- Buffalo, Rochester Castle, New whereas advantages. offer similar not in a burgh position was Commission, C. (29 114) I. C. The Interstate Commerce sustained contention, and in overruled this 445), this court. (214 Rep. District Court Fed. (236 361) that what was question We there held U. S. preference advantage under an undue or unreasonable was a question 3 of the Interstate Commerce Act if order of the Commission fact, but and that law statutory authority did not exceed its constitutional Unsupported by testimony, could not be and was not that,the 363), provisions courts; (p. set aside held by the unchanged, section remains must §3, although that read in connection with amendments aild be act, .by and that these amend- parts other terminals, delivering freight at ments facilities transportation to be brought were within the definition 369) the order did not also regulated; (pp. Pennsyl- of the of the compulsory taking amount to use another road within vania tracks the inhibition right being given to .the Buffalo 3; final clause of no § Pennsylvania the terminals road run cars over depots or to use or its stations or occupy its own. purposes of parties (Louis.

In the case between the former present States, 1), R. R. v. United 238 U. we & Nash. S. sustained TERM, 1916. JJ., dissenting. U. Pitney, '242 Day, Brandéis, Clarke, (216 672) in Rep. refusing the District Court Fed. an injunction to into effect of an putting restrain order (28 540) I. 533, of the Commission C. C. requiring appel lants to interstate coal with interswitch the Tennessee Central as each other. findings did with 542) recognized that the terminals (p. Commission were in part part separate owned and in jointly (216 the two The District Court Fed. appellants. Rep. to this And this court 682, 684) (238 alluded fact. U. S. fact 17, 18, 20) ignore did but laid it aside “If declaring: immaterial, carrier, however, does not rest behind that shield final statutory clause [the voluntarily but chooses to throw the Terminals open § 3] many traffic, branches it to that extent makes the Having Yard-public. facility made the Yard a for many many purposes patrons, and to such facility railroad within the provisions of the statute which pro hibits used" in facility being such manner as to against patrons discriminate and commodities.” If the decision reached in present case is adhered to, remains uficorrected by legislation, remedial will door to opeü. discriminatory practices repug- wide nant alike to the letter and spirit Regu- Act to of. late Commerce.

Mr. Justice Day, Mb and Mr. Bbandeis, Justice concur in this dissent: Justice Claeke

Case Details

Case Name: Louisville & Nashville Railroad v. United States

Court Name: Supreme Court of the United States

Date Published: Dec 4, 1916

Citation: 242 U.S. 60

Docket Number: 290

Court Abbreviation: SCOTUS