Peoria Railway Company v. United States/Opinion of the Court
Transportation Act 1920 confers upon the Interstate Commerce Commission authority to issue, in certain classes of cases, orders 'with or without notice, hearing, or the making or filing of a report,' if it finds that an emergency exists. Act Feb. 28, 1920, c. 91, § 402, 41 Stat. 456, 476, 477, 486 (Comp. St. Ann. Supp. 1923, § 8563).

Purporting to act under this power, the Commission ordered, without notice or hearing, that the Peoria & Pekin Union Railway Company 'continue to interchange freight traffic between the Minneapolis & St. Louis Railroad Company and connecting carriers at the regularly established interchange points at and in the vicinity of Peoria, Ill.' This order required the terminal company to switch, by its own engines and over its own tracks, freight cars tendered to it by, or for, the Minneapolis & St. Louis, a service which it had threatened to discontinue because the payment demanded therefor had been refused.  The Peoria Company insisted that the Commission was without authority under its emergency power to require one carrier to switch cars for another, and brought this suit against the United States in the federal court for Southern Illnois to enjoin the enforcement of the order. The Commission and the Minneapolis & St. Louis intervened as defendants. The case was heard upon application for a temporary injunction, the injunction was denied, and the Peoria Company took a direct appeal to this court under the Act of October 22, 1913, c. 32, 38 Stat. 208, 220 (Comp. St. § 998).

It is conceded that the Commission could, under its general powers and upon appropriate procedure, order a terminal company to perform a service of this character. But under the general powers of the Commission this could be done only after full hearing, and such an order would ordinarily not take effect under the law until 30 days after service.  It is also conceded that the existing conditions were such as to justify entry of the order under the emergency powers, if these include the requiring of switching. The objection urged is that the emergency power conferred is limited to orders which direct the manner in which transportation service shall be rendered or which prescribe the use to be made of railroad property, and that no such authority is granted to require performance of a transportation service. The substantive question presented is one of statutory construction-the scope of the emergency power.

The Commission possessed no emergency power prior to the so-called Esch Car Service Act, May 29, 1917, c. 23, 40 Stat. 101 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 8563).  Its provisions were amended by Transportation Act 1920, and in the amended form are introduced as paragraphs 15 and 16 of section 1 of the Act to Regulate Commerce and as paragraph 4 of section 15. 41 Stat. 476, 477, 486 (Comp. St. Ann. Supp. 1923, §§ 8563, 8583). Paragraph 15 deals in subparagraphs (a) and (b) with car service; in subparagraph (c) with the common use of terminals; in subparagraph (d) with preferences in transportation, embargoes, and movement of traffic under permits. Paragraph 16 and the amendment to section 15 confer emergency power to reroute traffic and 'to establish temporarily, such through routes as in its [the Commission's] opinion are necessary or desirable in the public interest.' None of these provisions grants in terms power to require the performance of a transportation service. The specific grant in paragraph 16 of emergency power to 'make such just and reasonable directions with respect to the handling, routing, and movement of the traffic of such carrier and its distribution over other lines of roads,' and the omission of any reference to switching, tend to rebut an intention to grant the power here asserted. The order cannot be justified as dealing with preferences in transportation or embargoes under subparagraph (d). Nor does the order provide for the joint use of terminals under subparagraph (c),  since it does not purport to authorize the Minneapolis & St. Louis to use the tracks and terminals of the Peoria Company. The contentions mainly urged are that the order is one concerning car service under subparagraph (b),  or that power to require switching should be held to have been granted by implication.

The argument that the authority of the Commission over car service should be construed to include the requiring of switching rests upon paragraph 10 of amended section 1 of the Act to Regulate Commerce.  But 'car service' connotes the use to which the vehicles of transportation are put; not the transportation service rendered by means of them.  Cars and locomotives, like tracks and terminals, are the instrumentalities. To make these instru mentalities available in emergencies to a carrier other than the owner was the sole purpose of subparagraphs (a), (b), and (c). It is to this end only, that provision is made by paragraph 10 for the 'movement, distribution, exchange, interchange, and return of locomotives, cars, and other vehicles used in the transportation of property.' This is substantially the same expression as was used in the Esch Car Service Act. The 1920 act merely adds locomotives and other vehicles.

Transportation Act 1920 evinces, in many provisions, the intention of Congress to place upon the Commission the administrative duty of preventing interruptions in traffic. But there is no general grant of emergency power to that end, and the detail in which the subjects of such power have been specified precludes its extension to other subjects by implication. Moreover, switching service differs in character from those as to which such power is expressly granted. These involve either the use by one carrier of property of another or the direction of the manner and the means by which the service of transportation shall be performed. The switching order here in question compels performance of the primary duty to receive and transport cars of a connecting carrier. That courts may enforce such duties by a mandatory injunction, including a preliminary restraining order, has long been recognized.  It may be that Congress refrained, for this reason, from conferring emergency power of this character upon the Commission.

The United States contends, also, that the decree dismissing the bill should be affirmed, because under the Act of Cotober 22, 1913, c. 32, 38 Stat. 208, 219, 220, the proper venue was the district of Iowa, that being the residence of the Minneapolis & St. Louis Railroad. Compare Illinois Central R. Co. v. Public Utilities Commission, 245 U.S. 493, 504, 505, 38 Sup. Ct. 170, 62 L. Ed. 425; Skinner & Eddy Corporation v. United States, 249 U.S. 557, 563, 39 Sup. Ct. 375, 63 L. Ed. 772. The provision that suit shall be brought in the district of the residence of the party on whose petition the order was made is obviously one inserted for his benefit.  If there were a lack of jurisdiction in the District Court over the subjectmatter, we should be obliged to take notice of the defect, even if not urged below by the appellee. Mattingly v. Northwestern Virginia R. Co., 158 U.S. 53, 57, 15 Sup. Ct. 725, 39 L. Ed. 894. But the challenge is merely of the jurisdiction of the court for the particular district. The objection is to the venue. See Camp v. Gress, 250 U.S. 308, 311, 39 Sup. Ct. 478, 63 L. Ed. 997. This privilege not to be sued elsewhere can be waived, and it was waived both by the Minneapolis & St. Louis Railroad and the Commission. The United States was, nevertheless, entitled to insist upon compliance with the venue provision, and its objection was properly taken below. But, by failure to enter a cross-appeal from the court's action in overruling its objection, the right to insist upon it here was lost. The appellees can be heard before this court only in support of the decree which was rendered. The Maria Martin, 12 Wall. 31, 40, 20 L. Ed. 251; Bolles v. Outing Co., 175 U.S. 262, 268, 20 Sup. Ct. 94, 44 L. Ed. 156. We have therefore, no occasion to consider whether the suit was brought in the proper district.

Reversed. 

Notes

Peoria, Illinois