carriers to the end that they may provide efficient and economical transportation service, and that in aid of this policy the Commission is vested with authority to prevent or remove unlawful prejudice to, undue burdens upon, or illegal obstructions to their interstate commerce such as those alleged in the complaints," the Commission said: "While the act does disclose a policy of Congress of the nature alleged by complainants, and when this Commission acts in response to some duty imposed or authority created by the act it must act in such manner as to give effect to the legislative purpose, we must reject complainants' contention that we can assume jurisdiction and act to carry out that policy independently of some duty imposed or authority created by the act. We are invested with no roving commission to carry out the policy of Congress; our powers are those delegated to us by the various sections of the Interstate Commerce Act and other acts which define the standards of right and obligation and delegate to us the function of finding the facts, determining the issues, and making the regulations necessary to give effect to those standards. We have hereinabove examined the sections of the act relied upon and found therein no delegation of authority to act upon the state of facts herein presented. Statements of the courts above quoted as to our extensive powers to carry out the legislative intent were made in connection with our exercise of powers under specific provisions of the act. We cannot, in order to carry out what we conceive to be the legislative intent, exercise powers which are neither expressly delegated, nor reasonably necessary in order to effectuate powers which are expressly delegated." 211 I.C.C. 304.
The motions of the defendants were sustained by the Commission on the ground of lack of jurisdiction and the complaints were dismissed. There was an application for a rehearing which was denied.
The petition for mandamus was filed in this court on June 8, 1936. An amended petition was filed September 28, 1936. By this petition, the relator seeks an order directing the Interstate Commerce Commission to set aside and vacate its order of November 11, 1935, dismissing its complaint, and to consider and decide the issues raised by that complaint upon their merits.
The Commission and the interveners filed answers to the reltor's amended petition, and the relator demurred to these answers. There is no dispute as to the facts.
The demurrer to the answers raises the question whether the Commission plainly and clearly has jurisdiction to entertain the complaint.
We are not here concerned with the merits of the controversy. It may be conceded that in their application, the terms of the operating agreement impose undue burdens and hardships upon the small user of the terminal facilities, and that it is inequitable to compel them to share equally the taxes and interest charges with the larger user. In disposing of the demurrer the principles of law relating to the remedy by mandamus must be invoked.
The Interstate Commerce Commission is the administrative body created by the Congress for the purpose of regulating interstate commerce. The Commission is clothed with such powers in that respect as are expressly delegated to it or are reasonably necessary in order to effectuate the powers which are so expressly delegated.
Mandamus will not issue where its effect will be to dictate to an officer in the exercise of a discretionary function, or to serve the purpose of a writ of error. Furthermore, where an officer's action involves the exercise of his discretion and judgment in the construction and interpretation of a statute, mandamus will not issue to compel him to act upon one construction rather than another. Decatur v. Paulding, 14 Pet. 497, 10 L. Ed. 559, 609; Gaines v. Thompson, 7 Wall. 347, 19 L. Ed. 62; U.S. ex rel. Dunlap v. Black, 128 U.S. 40, 9 S. Ct. 12, 32 L. Ed. 354; U.S. ex rel. Riverside Oil Co. v. Hitchcock, 190 U.S. 316, 23 S. Ct. 698, 47 L. Ed. 1074; Ness v. Fisher, 223 U.S. 683, 32 S. Ct. 356, 56 L. Ed. 610; U.S. ex rel. Hall v. Payne, 254 U.S. 343, 41 S. Ct. 131, 65 L. Ed. 295; Wilbur v. U.S., 281 U.S. 206, 207, 50 S. Ct. 320, 74 L. Ed. 809; Interstate Commerce Commission v. New York, N.H. & H.R. Co., 287 U.S. 178, 53 S. Ct. 106, 77 L. Ed. 248.
"Where the duty in a particular situation is so plainly prescribed as to be free from doubt and equivalent to a positive command, it is regarded as being so far ministerial that its performance may be compelled by mandamus, unless there be provision or implication to the contrary." Wilbur v. U.S., supra, 281 U.S. 206, 218, 219, 50 S. Ct. 320, 324, 74 L. Ed. 809.
"If beyond peradventure the act does not confer upon the Commission the power invoked by a complainant, the writ will not be granted. If on the other hand power and authority are plainly found in the act, and the Commission erroneously refuses to exercise such power and authority, mandamus is the appropriate remedy to compel that body to proceed and to hear the case upon the merits." U.S. v. Interstate Commerce Commission, supra, 294 U.S. 50, at page 61, 55 S. Ct. 326, 330, 79 L. Ed. 752.
It would unduly prolong this opinion to review the report of the Commission discussing the various sections of the act relied on to justify jurisdiction. Under the heading "Source of Power to Grant Relief Sought," (211 I.C.C. 296) the Commission considered these sections in detail, and concluded that the Congress had failed to delegate authority to it to consider and determine the merits of the complaint.
There is quoted above that part of the report which disclaims any inherent power to grant the relief demanded. The Commission held that it had no "roving commission to carry out the policy of Congress," but that in the exercise of delegated powers it was required to give effect to such policy.
The report of the Commission indicates that "its conclusion was not so clearly erroneous as to call for the exercise of the extraordinary power involved in the issuance of mandamus."
The act does not "beyond peradventure" confer jurisdiction upon the Commission to entertain the complaint and decide it upon the merits. On the contrary, such power and authority are not expressly delegated. The so-called "pervasive spirit of the Act" is of no avail. Therefore, applying the well-settled principles of the law of mandamus, the court is of the opinion that the writ should not issue.
The demurrer to the answers also presents the question of res judicata. The answers relied upon the judgment of this court in U.S. ex rel. Chicago Great Western Railroad Company et al. v. Interstate Commerce Commission, Law No. 82771 on the dockets of this court, which was affirmed by the Court of Appeals for the District of Columbia and by the Supreme Court of the United States, 63 App.D.C. 215, 71 F.2d 336, and 294 U.S. 50, 55 S. Ct. 326, 79 L. Ed. 752, cited supra. This litigation had to do with the proceedings instituted before the Commission by the Missouri-Kansas-Texas Railroad Company wherein it sought an order authorizing it to use the union station and terminal facilities of the Terminal Railway Company at Kansas City, Missouri-Kansas. The relator here, among other carriers, intervened in that proceeding. The Commission dismissed the intervening petition of the relator for want of jurisdiction. The relief sought was substantially the same as that demanded by the complaint in the proceeding now under review. There, as in the latter proceeding, the operating agreement was attacked and on substantially the same grounds, that is, in the first case, the right to relief was mainly predicated upon sections 1 and 3 of the act, whereas in the latter, the complaint relied chiefly upon the alleged power of the Commission to remove burdens upon interstate commerce. In other words, the issue involved in the first case was whether the Commission clearly and beyond peradventure of doubt had power under the act to readjust the payments of the proprietary companies in disregard of the operating agreement. That is the issue here, notwithstanding that other and additional reasons are now urged in support of the jurisdiction of the Commission.
"It is well settled that a final judgment rendered upon the merits of an application for a peremptory writ of mandamus comes within the principle of res judicata, and is a bar to another application for the same writ by the same party under the same circumstances, or to another action involving the same issues and in which the same relief is sought." 34 C.J. § 1173, p. 760.
The rule of res judicata not only concludes the questions raised, but also extends to and concludes all questions which could have been raised. 38 C.J. § 726, p. 947.
The court is of opinion that the answers setting up res judicata are sufficient.
The demurrer to the answers is overruled.
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