Delaware, L. & W. R. v. Interstate Commerce Commission

166 F. 498, 1908 U.S. App. LEXIS 5457

Opinion

PER CURIAM.

That portion of section 1 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S-. Comp. St. 1901, p. 3154]) which deals with switch connections provides that any common carrier subject to the provisions of the act shall (in certain contingencies) construct, maintain, and operate a switch connection upon the application either of “any lateral branch line of railroad” or of “any shipper tendering interstate traffic for transportation.” Further on in the section, where provision is made for hearing, investigation, determination, and the making of an order by the commission, it is provided that such procedure shall be had when the common carrier shall fail to install and operate such switch connection “on application therefor in writing by .any shipper,” and when “such shipper may make complaint to the commission.” In this part of the section there is no provision as to any such application or complaint made by the “lateral branch line.” It may be that this is an oversight. Quite probably Congress intended to allow the lateral branch line, as well as the shipper, to invoke the action of the commission; but it has not said so in this statute, and we all agree in the conclusion that it is not for this court to amend the act.

In the case at bar there was no written application by any shipper, nor any complaint by such shipper to the commission. The “lateral branch line” was the only moving party. In the absence of such written application and complaint, we think it was without power to make the order complained of. An order for preliminary injunction may issue.