MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The Constitution of Arkansas, article 17, § 1, declares: "Every railroad company shall have the right with its road to intersect, connect with, or cross any other road." A statute provides that the railroad commission "shall have exclusive power to determine and prescribe the manner, including the particular point of crossing and the terms of installation, operation, maintenance, apportionment of expenses, use and protection of each crossing of one railroad by another railroad" Act April 1, 1919, No. 571, pp. 411, 419, § 9, Crawford & Moses' Digest, § 1643.
Proceeding under that statute, without first obtaining from the Interstate Commerce Commission a certificate of public convenience and necessity under paragraph 18 of § 1 of the Interstate Commerce Act as amended by Transportation Act 1920, the Missouri Pacific Railroad applied to the Arkansas commission for a crossing with an industrial track of a spur of the St. Louis Southwestern Railway at grade, at a point in North Little Rock—the crossing to be constructed at the applicant's expense and in accordance "with the terms of installation, operation, maintenance and protection of such crossing as may be fixed by" the commission. At the hearing thereon the St. Louis Southwestern appeared in opposition; but it filed no pleading and made no statement as to the ground of its opposition.
[p78] Both companies are interstate carriers. The record of the proceedings before the Arkansas commission occupies 82 pages of the printed record. But there is in it nothing which indicates that either party had then in mind any question arising under the Interstate Commerce Act. The application to the Arkansas commission alleged that the Missouri Pacific hauls over its extensive system most of the traffic to and from the plant of the Dixie Cotton Oil Mills at North Little Rock; that in order to handle this traffic, cars must now be switched from or to its lines for a distance of 500 feet over tracks of the St. Louis Southwestern; that if the Missouri Pacific were enabled to reach the plant wholly over its own lines, operations would be facilitated; that to this end it had arranged to build to the plant a spur 5,460 feet long; and that to make this connection with its main line the crossing is necessary. At the opening of the hearing, counsel for the Missouri Pacific asked leave to amend the application by alleging that the proposed industrial track would be "an industrial lead throughout its entire length, for the service of the public generally, and operation and serving of industries that may be located in this new territory"—that is, an industrial track from which switches would lead to new industries that might be located there.
The St. Louis Southwestern objected to the allowance of the amendment; its objection was sustained by the commission; and its counsel stated that the introduction of any evidence of the purpose to make the track an industrial lead would be objected to. But as the hearing proceeded there was evidence (brought out largely through the cross-examination by the St. Louis Southwestern's counsel) that it was the hope of the Missouri Pacific that the proposed track would ultimately be used as an industrial lead track. The Arkansas commission denied the Missouri Pacific's application to fix the place [p79] and manner of the crossing. Why it did so does not appear. It rendered no opinion; and its order stated merely that "having heard all the evidence" and "after having made a personal inspection of all the physical properties described in the petition and involved in this proceeding [the commission] is of the opinion that said application should be denied." A rehearing sought was also denied without opinion or other indication of the reason for the commission's action.