PRITCHARD, Circuit Judge
(after stating the facts as above). [1] It is insisted by appellants that appellees should in the first instance have applied for relief to the Interstate Commerce Commission or Public Service Commission of the state, and that, not having [834]*834made such application, the appellees have no standing in court, and the bill should therefore be dismissed. It is conceded that the controversy includes interstate commerce. Such being the case, the Public Service Commission of the state of West Virginia is without jurisdiction. This proposition is so clear that we do not deem it 'necessary to enter into any discussion of the same.
However, appellants strenuously contend that the Interstate Commerce Commission has jurisdiction. After a careful examination, we find no statute which undertakes to confer jurisdiction upon the Interstate Commerce Commission as respects transactions of this character. The Interstate Commerce Commission not having made any regulation as to the distance of a loading rack from the main line, and it further appearing that when these loading racks were established that body was not consulted as to their proper location, we can conceive of no theory upon which the Commission would have jurisdiction. In the case of Danciger v. Wells Fargo & Co. (C. C.) 154 Fed. 379, Judge Pollock said:
“A further contention made by the defendants is that the court of exclusive original jurisdiction in this controversy is the Interstate Commerce Commission, and that this court has no jurisdiction in the first instance to afford to complainants the relief here sought, and much reliance is placed by the defendants on the case of Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553 [9 Ann. Cas. 1075]. Prom a reading of that case I do not consider it applicable to the state of facts here presented. If the controversy here was as to whether the defendants were charging excessive or unreasonable rates for the shipments tendered by complainants, the case relied upon would to my mind be in point; but as the ground of relief sought by complainants in the case at bar is the performance by defendants of a duty imposed upon them by law, which they wholly neglect and refuse to perform, I think such question is one for the determination of the courts.”
The case of Eastern Railway Co. v. Littlefield, 237 U. S. 140, 35 Sup. Ct. 489, 59 L. Ed. 878, is very much in point. There the plaintiff Littlefield and others sought to recover damages from the railroad company on account of the failure of the company to furnish cars for the transportation of freight. In that instance the suit was instituted in the state court of Texas. A demurrer was interposed by the railroad upon the ground that, if the plaintiffs had any right, it arose -under the Commerce Act (24 Stat. 379), and that therefore the federal courts had exclusive jurisdiction. It was also insisted that a federal question was presented which should have first been passed upon by the Interstate Commerce Commission. The demurrer was overruled, and a verdict rendered in favor of the plaintiff, and upon appeal the judgment of the Court of Civil Appeals of Texas (135 S. W. 1086) was affirmed by the Supreme Court of Texas (154 S. W. . 543). The case was then carried to the Supreme Court of the United States, and that court held that there was no merit in the contention that a federal question was involved.
The powers of the Interstate Commerce Commission are clearly defined by Moore on Carriers (2d Ed.) p. 1759, as follows:
. “By the Interstate Commerce Act of 1887, Congress, in. pursuance of its constitutional power to regulate commerce among the states, assumed con[835]*835trol of the interstate railway traffic of the country. The principal objects of that act were ‘to secure just and reasonable charges for transportation; to prohibit unjust discriminations in the rendition of like services under similar conditions and circumstances; to prevent undue and unreasonable preferences to persons, corporations, or localities; to inhibit greater compensation for-a shorter than for a longer distance over the same line; and to abolish combinations for the pooling of freights.'’ To secure these ends certain regulations applicable to railway carriers engaged in interstate transportation were established, and a commission created charged with the administration and enforcement of the act.”
In the case of Chicago, R. I. & P. Ry. Co. v. Lawton Refining Co., 253 Fed. 706, 165 C. C. A. 299, the court said:
•‘A contention is made that the courts have no jurisdiction over questions relating to the duty of a carrier to furnish cars to a shipper, and that such an order should he made by an administrative Dody; but counsel do not advise us of any special tribunal having such powers.”
In the case of Chesapeake & Ohio Ry. v. Public Service Commission, 242 U. S. 607, 37 Sup. Ct. 236, 61 L. Ed. 520, the court said:
“One of the duties of a railroad company doing business as a common carrier is that of providing reasonably adequate facilities for serving the public. This duty arises out of the acceptance and enjoyment of the powers and privileges granted by the state and endures so long as they are retained. It represents a part of what the company undertakes to do in return for them, and its performance cannot be avoided merely because it will bo attended by some pecuniary loss.”
la view of what we have said, we are of the opinion that appellees were not required to apply to the Interstate Commerce Commission, inasmuch as that body did not have jurisdiction over the subject-matter involved in this controversy.
[2] It is urged that, it being provided by the contract between the railroad and the shipper that the railroad is empowered to make such changes as to location of side tracks as it may deem necessary, therefore the proposed changed location of the side tracks is within the discretion of the management of the road. That portion of the contract which is relied upon is as follows:
“ * * * If the business of the second party shall not at any time be sufficient to justify the continuance of said side track in the opinion of the chief operating officer of the railroad, or if, in the opinion of such officer, the railroad is not justified in continuing said side track because of changes in its tracks or because it will interfere with the proper operation of said railroad, then and in either event the railroad shall have the right after GO days’ written notice to discontinue the use of said side track and take up and remove all ties, rails, and other materials belonging to the railroad used in the cons traction, maintenance, and oiieration of said side track, and abandon the use and operation thereof.”
While this provision clearly gives the railroad the right to discontinue side track accommodations, or to make changes iu the location of its tracks on account of their interference with the proper operation of the railroad, we do not think it was intended to confer upon the railroad the power to arbitrarily make such changes as are proposed in this instance.
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PRITCHARD, Circuit Judge
(after stating the facts as above). [1] It is insisted by appellants that appellees should in the first instance have applied for relief to the Interstate Commerce Commission or Public Service Commission of the state, and that, not having [834]*834made such application, the appellees have no standing in court, and the bill should therefore be dismissed. It is conceded that the controversy includes interstate commerce. Such being the case, the Public Service Commission of the state of West Virginia is without jurisdiction. This proposition is so clear that we do not deem it 'necessary to enter into any discussion of the same.
However, appellants strenuously contend that the Interstate Commerce Commission has jurisdiction. After a careful examination, we find no statute which undertakes to confer jurisdiction upon the Interstate Commerce Commission as respects transactions of this character. The Interstate Commerce Commission not having made any regulation as to the distance of a loading rack from the main line, and it further appearing that when these loading racks were established that body was not consulted as to their proper location, we can conceive of no theory upon which the Commission would have jurisdiction. In the case of Danciger v. Wells Fargo & Co. (C. C.) 154 Fed. 379, Judge Pollock said:
“A further contention made by the defendants is that the court of exclusive original jurisdiction in this controversy is the Interstate Commerce Commission, and that this court has no jurisdiction in the first instance to afford to complainants the relief here sought, and much reliance is placed by the defendants on the case of Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553 [9 Ann. Cas. 1075]. Prom a reading of that case I do not consider it applicable to the state of facts here presented. If the controversy here was as to whether the defendants were charging excessive or unreasonable rates for the shipments tendered by complainants, the case relied upon would to my mind be in point; but as the ground of relief sought by complainants in the case at bar is the performance by defendants of a duty imposed upon them by law, which they wholly neglect and refuse to perform, I think such question is one for the determination of the courts.”
The case of Eastern Railway Co. v. Littlefield, 237 U. S. 140, 35 Sup. Ct. 489, 59 L. Ed. 878, is very much in point. There the plaintiff Littlefield and others sought to recover damages from the railroad company on account of the failure of the company to furnish cars for the transportation of freight. In that instance the suit was instituted in the state court of Texas. A demurrer was interposed by the railroad upon the ground that, if the plaintiffs had any right, it arose -under the Commerce Act (24 Stat. 379), and that therefore the federal courts had exclusive jurisdiction. It was also insisted that a federal question was presented which should have first been passed upon by the Interstate Commerce Commission. The demurrer was overruled, and a verdict rendered in favor of the plaintiff, and upon appeal the judgment of the Court of Civil Appeals of Texas (135 S. W. 1086) was affirmed by the Supreme Court of Texas (154 S. W. . 543). The case was then carried to the Supreme Court of the United States, and that court held that there was no merit in the contention that a federal question was involved.
The powers of the Interstate Commerce Commission are clearly defined by Moore on Carriers (2d Ed.) p. 1759, as follows:
. “By the Interstate Commerce Act of 1887, Congress, in. pursuance of its constitutional power to regulate commerce among the states, assumed con[835]*835trol of the interstate railway traffic of the country. The principal objects of that act were ‘to secure just and reasonable charges for transportation; to prohibit unjust discriminations in the rendition of like services under similar conditions and circumstances; to prevent undue and unreasonable preferences to persons, corporations, or localities; to inhibit greater compensation for-a shorter than for a longer distance over the same line; and to abolish combinations for the pooling of freights.'’ To secure these ends certain regulations applicable to railway carriers engaged in interstate transportation were established, and a commission created charged with the administration and enforcement of the act.”
In the case of Chicago, R. I. & P. Ry. Co. v. Lawton Refining Co., 253 Fed. 706, 165 C. C. A. 299, the court said:
•‘A contention is made that the courts have no jurisdiction over questions relating to the duty of a carrier to furnish cars to a shipper, and that such an order should he made by an administrative Dody; but counsel do not advise us of any special tribunal having such powers.”
In the case of Chesapeake & Ohio Ry. v. Public Service Commission, 242 U. S. 607, 37 Sup. Ct. 236, 61 L. Ed. 520, the court said:
“One of the duties of a railroad company doing business as a common carrier is that of providing reasonably adequate facilities for serving the public. This duty arises out of the acceptance and enjoyment of the powers and privileges granted by the state and endures so long as they are retained. It represents a part of what the company undertakes to do in return for them, and its performance cannot be avoided merely because it will bo attended by some pecuniary loss.”
la view of what we have said, we are of the opinion that appellees were not required to apply to the Interstate Commerce Commission, inasmuch as that body did not have jurisdiction over the subject-matter involved in this controversy.
[2] It is urged that, it being provided by the contract between the railroad and the shipper that the railroad is empowered to make such changes as to location of side tracks as it may deem necessary, therefore the proposed changed location of the side tracks is within the discretion of the management of the road. That portion of the contract which is relied upon is as follows:
“ * * * If the business of the second party shall not at any time be sufficient to justify the continuance of said side track in the opinion of the chief operating officer of the railroad, or if, in the opinion of such officer, the railroad is not justified in continuing said side track because of changes in its tracks or because it will interfere with the proper operation of said railroad, then and in either event the railroad shall have the right after GO days’ written notice to discontinue the use of said side track and take up and remove all ties, rails, and other materials belonging to the railroad used in the cons traction, maintenance, and oiieration of said side track, and abandon the use and operation thereof.”
While this provision clearly gives the railroad the right to discontinue side track accommodations, or to make changes iu the location of its tracks on account of their interference with the proper operation of the railroad, we do not think it was intended to confer upon the railroad the power to arbitrarily make such changes as are proposed in this instance. However, in the instant case no such emergency as described in the contract has arisen, there being no evidence that there has been any proposed changes of the location of the main [836]*836line tracks, nor is there any evidence that the side tracks as now constituted interfere in the-slightest with.the proper and successful operation of the road.. If it appeared to the 'Director General that, in order to successfully operate the road, it had become necessary to remove the main line as-originally constituted, or to do any of the other things enumerated in the contract, then in that event there would be great force in the contention of the appellants; but for the reasons above stated we do not think that this provision of the contract can be reasonably construed so as to give the railroad the arbitrary power to refuse to receive shipments, or to require the racks to be moved, until the shipper shall have the opportunity to secure a judicial determination as to the reasonableness or the unreasonableness of such proposed action.
[3] We will now consider the second contention wherein it is insisted that the war power of the government as respects the control, operation, and/management of railroads .is exclusive and forbids judicial action. That the railroad and its officers have been under control of the government since December 28, 1917, is undoubtedly true.
By act of Congress approved August 29, 1916 (U. S. Statutes at Targe, vol. 39, p. 645 [Comp. St. § 1974a]), among other things it is provided:
“That the President in time of war, is empowered, through the Secretary of War, to take possession and assume control of any system’or systems of transportation, or any part thereof, and to utilize the same, to the exclusion as far as may be necessary of all other traffic thereon for the transfer or transportation of troops, war material and equipment, or for such other purposes connected with the emergency as may be needful or desirable.”
In pursuance of this statute, the President issued a proclamation (U. S. Statutes at Targe, vol. 40, pt. 2, p. 1734), the material part of which is in the following language:
“Now therefore, I, Woodrow Wilson, President of the United States, under and by virtue of the powers vested in me by the foregoing resolutions and statute, and by virtue of all other powers thereto me enabling, do hereby, through Newton D. Baker, Secretary of War, take possession and assume control at 12 o’clock noon on the twenty-eighth day of December, 1917, of each and every system of transportation and the appurtenances thereof located wholly or in part within the boundaries of the continental United States and consisting of railroads, and owned or controlled systems of coastwise and inland transportation, engaged in general transportation, whether operated by steam or by electric power, including also terminals, * * * to the end that such systems of transportation be utilized for the transfer and transportation of troops, war material and equipment, to the exclusion so far as may be necessary of all other traffic thereon; and that so far as such exclusive use be not necessary or desirable, such systems of transportation be operated and utilized in the performance of such other services as the national interest may require and of the usual and ordinary business and duties of common carriers.
“It is hereby directed that the possession, control, operation and utilization of such transportation systems hereby by me undertaken shall be exercised by'and through William G. McAdoo, who is hereby appointed and designated Director General of Railroads. * * *
“Until and except so far as said Director shall from time to time otherwise by general or special orders determine, such systems of transportation shall remain subject to all existing statutes and orders of the Interstate Commerce Commission, and to all statutes and orders of regulating commissions of the [837]*837various states in which said systems or any part thereof may he situated. But any orders, general or special, hereafter made by said Director, shall have paramount authority and be obeyed as such.”
By this proclamation, Newton D. Baker, Secretary of War, was declared to be vested with the possession and control of the various systems of transportation located wholly or in part within the boundaries of the continental United States, which had the effect of transferring the possession of all transportation lines from private to government ownership through the Secretary of War.
Section 10, chapter 25, of the Act of March 21, 1918 (Comp. St. 1918, Comp. St Ann. Supp. 1919, § 3115%]), defines the extent to which actions at law and suits in equity may be instituted against the Director General while the roads are under the control of the government. That portion of this act which we deem pertinent to the question now before the court is in the following language:
“That carriers while under federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or federal_ laws or at common law, except in so far as may be Inconsistent with the provisions of this act or any other act applicable to such federal control or with any order of the President. Actions at, law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that 1he carrier is an instrumentality or agency of the federal government. - -
“That during the period of federal control, whenever in his opinion the public interest requires, the President may initiate rates, fares, charges, classifications, regulations, and practices by filing the same with the Interstate Commerce Commission, which said rates, fares, charges, classifications, regulations, and practices shall not he suspended by the Commission pending final determination.
“Said ¡'ates, fares, charges, classifications,- regulations, and practices shall be reasonable and just and shall take effect at such time and upon such notice’as he may direct. * * *”
By this act it is made perfectly plain that actions at law or suits in equity may be brought by and against such carriers upon which judgment may be rendered as now provided by law. It is significant that Congress among other things should have provided that—
“* * jv[0 defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government. 's * * ”
Thus it will be seen that the statute by express terms provides that actions at law or suits in equity may still be instituted against the 1 )i-rector General, and that he or those under him shall not have the right to plead as a defense to any such action that the carrier is an instrumentality or agency of the federal government. This, we think, disposes of the contention that this suit is an interference with the government in its management and control of the railroads.
It is obvious that it was the purpose- of the act to give the President and those acting under him in the operation of the roads and the doing of those things necessary to promptly transport soldiers, material, and equipment, the exclusive control and management of the same. In harmony with this construction, it is provided that no execution shall be issued upon any judgment obtained against the Director General, [838]*838etc. In other words, all parties are inhibited from doing anything which might in the slightest degree interfere with the successful operation of the road for the purposes mentioned. This, we think, clearly defines what may or may not be done in the operation of the road during war times. It would be unreasonable to say that Congress intended .that the property of the shipper could be taken in a high handed and arbitrary manner, without giving such shipper an opportunity to have his rights as respects the same judicially determined. The court below had the facts before it in the form of affidavits, and upon which it found that the plaintiffs were about to suffer irreparable injury and that no such emergency existed as to require immediate and arbitrary action on the part of the Director General. The order above quoted shows that the court limited the injunction so as not to require the defendants to receive shipments at those points nearer to the passing track than 75 feet, and it was further provided that the same should-not be loaded at times when the cars of the main line were passing, and other restrictions so as to insure practical safety.
It appears that a portion of these racks were located while the roads were under private ownership, and finally, under contract of May 25, 1918, an extension of 90 feet was built under the direction of the Director General at a time when the railroad was being operated by the government, and the cost of labor and material for the erection of the same was paid by the appellees, thus giving the assent and sanction of the government management to the location of the same, the establishment of which required large expenditures to be made by the appellees, and it is significant that during this period not a single accident has occurred at this point. It further appears that the Director General is allowing the Pennsylvania Railroad to operate racks of a similar character at a much shorter distance from the main line, to wit, 30 feet.
Under these circumstances it would be a high-handed proceeding for the government, through its agents, to refuse. shipments at the, racks in question, without first affording, as we have said, the shipper the right to have the question of the reasonableness or unreasonableness of the proposed change determined by the court. After a careful .consideration, we are of the opinion that the action of the lower court in granting the preliminary injunction was proper, inasmuch as it appears that there was no such emergency as to require immediate action on the part of the appellees-.
It further appekrs that a compliance with the demands of the appellants would entail an enormous expenditure and work irreparable injury, in the event it 'should be finally decided that the appellants were not warranted in demanding the proposed change. Therefore, we are of the opinion that the order granting the preliminary injunction should be continued until the hearing.
For the reasons- stated, the order of the lower court is affirmed.
WOODS, Circuit Judge, dissents.