The test of a transaction under Section 5(2) is not, as plaintiff contends, whether it has an adverse effect on railroad employees, but whether it involves a consolidation or acquisition of control or management over two or more railroads in a common interest.
Plaintiff's contention that, on the same facts, Sections 1(4), 3(4) and 15(3) of the Act afford 'a basis for Commission action' to require the establishment and continued maintenance of through routes and joint passenger rates and 'to direct rail service to provide such through routes with through service by means of interchange of equipment', under the circumstances of this case, falls essentially short of stating a basis for relief. The aforementioned Sections are as follows:
'1(4) It shall be the duty of every such common carrier establishing through routes to provide reasonable facilities for operating such routes and to make reasonable rules and regulations with respect to their operation, * * *.
'3(4) All carriers subject to the provisions of this part shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; * * *.
'15(3) The Commission may, * * * establish through routes, joint classifications, and joint rates, fares, or charges, applicable to the transportation of passengers or property by carriers subject to this part * * * and the terms and conditions under which such through routes shall be operated. * * *'
There is no complaint that the change in the routing of the through trains resulted in any cancellation of a through route or joint rate which was formerly in effect. No facts are alleged and no proof was given that would show or tend to show that the defendants have failed to provide reasonable facilities for operating through passenger routes, as required by Section 1(4). Furthermore, no facts are alleged and no proof offered that would show or tend to show that the defendants have failed to afford all reasonable, proper and equal facilities for the receiving, forwarding and delivering passengers to and from connecting lines within the meaning of Section 3(4). We therefore agree with the Commission that the complaints filed by the plaintiff with the Commission are legally insufficient for their failure to allege facts which show or would tend to show that the acts complained of result, or may result, in violation of the Act.
One more matter deserves comment. The Commission has consistently held that the through transit arrangements herein involved do not require Commission approval under the provisions of Section 5(2) of the Act. This administrative interpretation is entitled to great weight by the Courts. See New York Central Securities Co. v. United States, 287 U.S. 12, 24, 53 S. Ct. 45, 77 L. Ed. 138. However, plaintiff contends that even though the Commission's interpretation of Section 5(2) has been consistent over a period of years, this Court should require the Commission to adopt an interpretation of the Civil Aeronautics Board, whereby the Board has held, under comparable language of the Civil Aeronautics Act, 49 U.S.C.A. § 401 et seq., that it had jurisdiction over the leasing and operation by one airline of the aircraft of another line. With equal logic it might be argued that the Civil Aeronautics Board should have followed the interpretation of the Commission. The real answer is that the two Acts are different. Congress clearly considered the regulation of air transportation to present quire different problems from those involved in rail transportation. It might well have seemed to Congress that the ready interchange of rail equipment presents no such safety and operational factors as are so obvious in transportation by air. We quite agree that the Commission's view of its own problems does not depend upon what the Board does in the administration of its Act.
We are in complete accord that the Commission did not act arbitrarily or unlawfully in dismissing the complaints without conducting hearings, or in denying plaintiff's petitions for a reconsideration. This action is dismissed and counsel for the defendants will submit an appropriate order not inconsistent with this opinion.
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