[226 U.S. 14, 15] Assistant Attorney General Denison, Special Assistant Attorney General Thurlow M. Gordon, and Messrs. Charles W. Needham for appellants.
[226 U.S. 14, 17] Messrs. R. Walton Moore, Edward Barton, Theodore W. Reath, Joseph I. Doran, and F. Markoe Rivinus, for appellees.
Mr. C. B. Matthews, for appellants.
Mr. Justice Holmes delivered the opinion of the court:
This is a suit to set aside an order of the Interstate Commerce Commission, directing the appellees to establish switch connections with the road of the appellant, and also through routes to and from points on that road. [226 U.S. 14, 18] 20 Inters. Com. Rep. 486. The commerce court made a decree as prayed (195 Fed. 962), and an appeal was taken to this court. The facts material to our decision are as follows: The Baltimore & Ohio Southwestern Railroad and the Norfolk & Western Railway are trunk lines of steam railroads running east and west across the state of Ohio. After almost touching each other at Norwood, a suburb of Cincinnati, they draw apart, the former in a northerly, the latter in a southerly, direction, but come together again at Hillsboro, about 53 miles further to the east. The line of the Traction Company is an 'interurban' electric railway, for passengers and some freight, running under a state charter between Norwood and Hillsboro, through the middle of the diamond inclosed by the steam roads, and authorized to go on to Columbus. For a number of miles easterly from Norwood to Stonelick, near Boston, the last-mentioned road is very near and almost parallel to the tracks of one or the other of the steam roads, as it is again for the last 5 miles before reaching Hillsboro. In the intervening space, between Boston and Dodsonville, the towns and villages on the electric line are from 5 to 10 or 12 miles by wagon distant from the nearest station on one of the steam roads. The Traction Company applied to the Commission for switch connections, and they were ordered as we have said.
Some technical objections were raised, but the substantial question is whether the Traction Company is a 'lateral branch line of railroad' within the meaning of the 1st section of the act to regulate commerce, amended by act of June 18, 1910, chap. 309, 7, 36 Stat. at L. 539, 547. That section requires carriers subject to the act to establish switch connections with such lines on certain conditions; and, as amended, permits owners of such lines as well as shippers to make complaint to the Commission in case of the carriers' failure upon written application, and authorizes the Commission to hear, investigate, and [226 U.S. 14, 19] determine whether the conditions exist, and to make an order directing the carrier to comply with the act. It will be seen without much argument that, unless the Traction Company is a lateral, branch line of railroad, the trunk line carriers, the appellees, are not subject to the requirement of the statute, so far as the Traction Company is concerned.
The words 'lateral branch line' do not refer to what the applicant may become or be made by order of the Commission, but to what it already is when it applies. The power of the Commission does not extend to ordering a connection wherever it sees fit, but is limited to a certain and somewhat narrow class of lines. The most obvious examples of such lines are those that are dependent upon and incident to the main line,- feeders, such as may be built from mines or forests to bring coal, ore, or lumber to the main line for shipment. We agree with the commerce court that the Traction Company is not within this class. It is an independent venture, in its general course parallel to, more or less competing with, the steam roads, and working on a different plan. Presumably and so far as appears it was built and would have been run without regard to the existence of the steam roads. The cases cited on behalf of the appellants as to the power of railroad companies to construct branch roads under their charter do not apply. There the determination of the company fixes the character of the branch; it builds the branch from the beginning as incident to the purposes of the company. But here, as we have said, this determination of the Commission that the applicants shall be a branch is not enough; the applicant must be a branch before it applies. That is the absolute and reasonable condition. That some shippers would be accommodated by a switch connection is not enough.
The order to maintain through routes was incident to the requirement of switch connections and falls with it. [226 U.S. 14, 20] We understand that it was based on the assumption that the connections were to be made, and therefore do not go into the question of power under 15.
It is unnecessary to consider objections to the conclusion of the Commission that it was safe and reasonably practicable, etc., to establish the switch. We remark that it is stated in the Commissioner's report that they base their conclusion more largely upon their own investigation than upon the testimony of the witnesses. It would be a very strong proposition to say that the parties were bound in the higher courts by a finding based on specific investigations made in the case without notice to them. See Washington ex rel. Oregon R. & Nav. Co. v. Fairchild, 224 U.S. 510, 525 , 56 S. L. ed. 863, 868, 32 Sup. Ct. Rep. 535. Such an investigation is quite different from a view by a jury, taken with notice and subject to the order of a court, and different again from the question of the right of the Commission to take notice of results reached by it in other cases, when its doing so is made to appear in the record, and the facts thus noticed are specified, so that matters of law are saved.