APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
MR. JUSTICE HOLMES delivered the opinion of the court.
This is a bill in equity brought by the plaintiff, appellee, to prevent the enforcement of an order made by the appellant, requiring the plaintiff to establish a switch connection with the Rahway Valley Railroad Company's road.14 I.C.C. Rep. 191. The order was made on June 24, 1908, under the Act to Regulate Commerce, February 4, 1887, c. 104, § 1, 24 Stat. 379, as amended by the act of June 29, 1906, c. 3591, § 1, 34 Stat. 584. Then this bill was brought; the Attorney General filed a certificate that the case was of general public importance; act of June 29, 1906, c. 3591, § 5, 34 Stat. 590; act of February 11, 1903, c. 544, § 1, 32 Stat. 823; the Interstate Commerce Commission demurred; the case was brought up before three circuit judges; a preliminary injunction was issued on the ground that the appellant, the Interstate Commerce Commission, had exceeded its power, and an appeal was taken at once and directly to this court as allowed by the act of 1906. 166 Fed. Rep. 498.
The Rahway Valley road is about ten miles long. It runs southeasterly from Summit through Kenilworth to Roselle, its terminus on the Lehigh Valley Railroad, and also south-westerly from Kenilworth to Aldene, its terminus on the Central Railroad of New Jersey, all the places named being
in New Jersey. The Delaware, Lackawanna and Western Railroad Company, the appellee, is a common carrier subject to the acts of Congress regulating commerce. Between Denville, New Jersey, and Hoboken it has two branches or lines, the Northerly, the Boonton branch, being devoted specially to freight, the Southerly, the Morris and Essex line, devoted as exclusively as may be to passenger traffic. This Southerly branch passes through Summit, and the Rahway Valley Railroad Company petitioned for and got an order requiring the appellee to make a switch connection with its road at that place. As the order interferes with the just stated policy of the appellee as to its Southerly line, it resisted the petition and brought this suit.
The material part of the act of Congress upon which the Commission relies is as follows:
"Any common carrier subject to the provisions of this Act, upon application of any lateral, branch line of railroad, or of any shipper tendering interstate traffic for transportation, shall construct, maintain, and operate upon reasonable terms a switch connection with any such lateral, branch line of railroad, or private side track which may be constructed to connect with its railroad, where such connection is reasonably practicable and can be put in with safety and will furnish sufficient business to justify the construction and maintenance of the same; and shall furnish cars for the movement of such traffic to the best of its ability without discrimination in favor of or against any such shipper. If any common carrier shall fail to install and operate any such switch or connection as aforesaid, on application therefor in writing by any shipper, such shipper may make complaint to the Commission, as provided in section thirteen of this Act, and the Commission shall hear and investigate the same and shall determine as to the safety and practicability thereof and justification and reasonable compensation therefor and the Commission may make an order, as provided in section fifteen of this Act, directing the common carrier to comply with the provisions
of this section in accordance with such order, and such order shall be enforced as hereinafter provided for the enforcement of all other orders by the Commission, other than orders for the payment of money."
The question is raised whether the Rahway road is a 'lateral, branch line of railroad' relatively to the appellee. There certainly is force in the contention that the words of the statute mean a railroad naturally tributary to the line of the common carrier ordered to make the connection, and dependent upon it for an outlet to the markets of the country, which, according to the bill, the Rahway road is not. There is force in the argument that a road already having connection with the roads of two carriers subject to the act and having joint routes and through rates with them cannot be regarded as a lateral branch line of railroad of another road situated like the appellee. On the other hand, it would be going far to lay down the universal proposition that a feeder might not be a lateral, branch road of one line at one end and of another at the other. We leave this doubtful question on one side because we agree with the circuit judges in the considerations upon which they decided the case.
The statute creates a new right not existing outside of it. Wisconsin, Minnesota & Pacific Railroad Co. v. Jacobson, 179 U.S. 287, 296. It is plain from the provisions of the act, the history of the amendments and justice, that the object was not to give a roving commission to every road that might see fit to make a descent upon a main line, but primarily, at least, to provide for shippers seeking an outlet either by a private road or a branch. The remedy given by the section creating the right is given only on complaint by the shipper. We are of opinion that the remedy is exclusive, on familiar principles, and that the general powers given by other sections cannot be taken to authorize a complaint to the ...