Appellants brought this suit against the United States, the Interstate Commerce Commission, and the Denver & Rio Grande Western Railroad Company to set aside an order of the Commission made pursuant to 49 U.S.C. § 5(2), 49 USCA § 5(2), authorizing that company by stock purchase to acquire control of the Denver & Salt Lake Railway Company, called the Moffat road. The latter, the Moffat Tunnel Improvement District, and the state of Colorado by its Public Utilities Commission, intervened as parties defendant. The grounds of suit alleged in the complaint are that the order is not supported by evidence, and that, because the examiner excluded what plaintiffs assert to be material evidence concerning the effect of such acquisition upon the public interest, the Commission failed to hold a hearing as required by the act. They have now abandoned the first of these contentions. Copies of the report, Denver & S.L. Ry. Co. Control, 170 I.C.C. 4, and the supplemental report and order, 175 I.C.C. 542, together with a narrative of evidence before the Commission, were attached to the complaint.
All the defendants prayed that the suit be dismissed. In substance they maintained that neither plaintiff is a legal entity or has capacity to maintain this suit on its own behalf or as representative of others, and that neither was a party in interest before the Commission or has any pecuniary, property, or legal right or interest injuriously affected or threatened by the order.
Plaintiffs applied to the court, consisting of three judges, for a temporary injunction. The motions to dismiss were submitted at the same time. The court held that plaintiffs failed to show that they had a right to maintain the suit. But, conceiving that on review dismissal on that ground might be deemed not sufficient finally to dispose of the litigation, it also passed upon the merits. Decree was entered accordingly. (D.C.) 59 F.(2d) 760.
The Rio Grande was built between 1871 and 1890. Its main line between Denver and Ogden, 782 miles, follows a circuitous and difficult route through mountainous country. It extends from Denver, a mile above sea level, southerly 120 miles to Pueblo, where the elevation is 4,668 feet, thence westerly, northerly, southwesterly, and northwesterly to Ogden. It rises to 10,240 feet over the continental divide at Tennessee Pass east of Dotsero, and descends to a level of 4,583 at Grand Junction, and 4,293 at Ogden. This line constitutes an important stretch for through transportation, via St. Louis and Chicago, between Pacific Coast points and the East. But as to traffic to or from the west originating at, destined to, or passing through, Denver, the Rio Grande is at a great disadvantage because of its circuitous route between Pueblo and Dotsero.
The Moffat road was constructed between 1903 and 1913 and extends westerly from Denver 232 miles through Grand and Routt counties to Craig in Moffat county, Colo. Its promoters at first intended to construct the line more than 250 miles farther into and through Duchesne and Uintah counties, Utah, to reach Provo, Salt Lake, or Ogden. But that became impossible, and it appears from the evidence that the company now has no such plans. Originally the line crossed the Continental Divide, rising from an elevation of 5,170 feet at Denver to 11,660 at Corona, and descending to 6,700 at Orestod, which is 41 miles northeasterly of Dotsero on the Rio Grande. The use of the line over the divide was so expensive and difficult that its abandonment was contemplated. Its continued operation was deemed of great importance to Denver and the northwestern part of Colorado. Accordingly the General Assembly of 1922 created the Moffat Tunnel Improvement District including all of Denver and parts or all of the counties traversed by the road, and provided for the construction of a tunnel to be used as a transportation facility for railroads, power, water, telephone, and telegraph. The cost was to be covered by an issue of bonds and, if necessary, by special assessments on real estate in the district according to benefits determined by the Moffat Tunnel Commission which was also created by the act. The tunnel was constructed at a cost of $15,470,000. In January, 1926, the district made a lease to the Moffat covering all railroad uses, and the tunnel has since been used as a part of its line. The Commission assessed the benefits against all real estate in the district at $45,000,000, of which 89 per cents. is upon property in Denver. The other parts of the district are mountainous and sparsely settled.