On the complaint of the Ft. Smith, Subiaco & Rock Island Railroad Company, called the 'Subiaco,' against the Missouri Pacific Railroad Company and 353 other carriers by rail, the Interstate Commerce Commission made an order establishing through routes for west-bound freight traffic over the Subiaco. The Missouri Pacific brought this suit against the United States to set aside the order. U.S.C. tit. 28, §§ 46, 48 (28 USCA §§ 46, 48). The Interstate Commerce Commission and the Subiaco intervened. Section 212, Judicial Code (28 USCA § 45a). The District Court, composed of three judges (U.S.C. tit. 28, § 47), held that the Commission was without power to establish the routes and entered its decree granting the relief prayed. The United States and the interveners join in this appeal. Section 47, supra.
The sole question is whether the Commission is authorized by the Interstate Commerce Act to establish the routes complained of.
Paragraph (3) of section 15 provides: 'The Commission may, and it shall whenever deemed by it to be necessary or desirable in the public interest, * * * establish through routes, * * * applicable to the transportation of * * * property. * * *' Paragraph (4) of that section provides: 'In establishing any such through route the Commission shall not (except as provided in section 3, and except where one of the carriers is a water line), require any carrier by railroad, without its consent, to embrace in such route substantially less than the entire length of its railroad * * * which lies between the termini of such proposed through route, unless such inclusion of lines would make the through route unreasonably long as compared with another practicable through route which could otherwise be established. * * *' U.S.C. tit. 49 (49 USCA § 15).
The entire line of the Subiaco is in Arkansas. It is 40 miles long, and extends from Paris, where it connects with a branch line of the Missouri Pacific, easterly to Dardanelle, where it meets a branch of the Chicago, Rock Island & Pacific Railway Company, extending southerly 14 miles to junction with the east and west main line of that company at Ola. The Subiaco has not been able to earn dividends, and has long sought to increase earnings by having its line made a part of through routes for interstate traffic not beginning or ending thereon.
In a proceeding initiated by the Subiaco against the Arkansas Central, whose line later became the Paris branch of the Missouri Pacific, the Commission, February 12, 1924, declared that such routes would be in the public interest, but dismissed the case for lack of proper parties defendant. Ft. Smith, S. & R. I. R. R. Co. v. A. C. R. R. Co., 87 I. C. C. 617. The Subiaco filed a new complaint that alleged need of more revenue to enable the company to continue operations and prayed for the establishment of through westbound routes via Little Rock, Ola, Dardanelle, and Paris. The Commission, Division 4, October 23, 1925, found that the company was earning a surplus over operating expenses and taxes and that on the showing there was no ground for abandonment of the line. The report shows that traffic to move over the proposed route must come from other carriers; that the Missouri Pacific, then probably not earning a fair return, would be the principal loser; and that revenue diverted from it would largely exceed the amount that would go to the Subiaco. The Division reversed the earlier finding and dismissed the complaint. Ft. Smith, S. & R. I. R. R. Co. v. A. & V. Ry. Co., 102 I. C. C. 708. The case was reopened and upon further consideration the Commission, March 2, 1926, one of its members dissenting and two others not participating, found the proposed route desirable in the public interest, and made the order here in controversy. 107 I. C. C. 523.
It directs defendants to establish and maintain through routes west bound over the Subiaco via Ola, Dardanelle, and Paris between points of origin and destination named in certain tariffs, which include places between which lie certain lines of the Missouri Pacific. The order contains a proviso: 'That this order shall not be construed as requiring any defendant to participate in any through route * * which would require it to surrender possession of traffic which it has originated or received from a connecting carrier to another carrier for transportation over a route which embraces less than the entire length of such defendant's railroad * * * which lies between the termini of such route.'