In proceedings initiated on complaint of the receiver of the Central of Georgia Railway Company, the Interstate Commerce Commission ordered to be 'stricken from the files' a tariff filed by the receivers of the Seaboard Air Line Railway Company. The tariff extended Fort Benning Junction switching limits to include receiving and delivery tracks at Fort Benning military post. It was stricken on the ground that it extended to a station and covered transportation not on the line of the Seaboard in violation of section 6(1) of the Interstate Commerce Act. Pollard v. Page, 206 I.C.C. 362. To annul that order the Seaboard brought this suit. The United States answered that the order is not reviewable and prayed dismissal of the complaint. The Commission appeared and by its answer supported the order. The Central intervened; its answer contained, in what purports to be a counterclaim under Equity Rule 30 (28 U.S.C.A. following section 723), allegations appropriate for a complaint in a suit under section 1(20) of the Act to prevent a violation of section 1(18). The Seaboard moved to strike out the counterclaim on the grounds, among other things, that it is not related to the cause of action alleged in the complaint, is not pleadable under rule 30, and is not within the jurisdiction of a court of three judges under 28 U.S.C. § 47 (28 U.S.C.A. § 47).
The case was tried by a court of three, a Circuit Judge and two District Judges. After hearing the evidence, the court in an opinion from which the Circuit Judge dissented held the order valid on the grounds that the tariff aided the Seaboard to violate section 1(18) of the Act and that it unduly impaired the Seaboard's line haul revenue in violation of section 4(1) of the Emergency Railroad Transportation Act, 1933, 48 Stat. 212, 49 U.S.C.A. § 254(1). (D.C.) 12 F.Supp. 938. It entered a final decree denying the motion of the United States to dismiss and the motion of the Seaboard to strike out the counterclaim, declared the order valid and, in accordance with the prayer of the counterclaim, enjoined the Seaboard from extending its line from the junction to the receiving and delivery tracks at Fort Benning and from operating the line between these points without obtaining from the Commission a certificate of public convenience and necessity, and from using the tariff and carrying out a contract for the use of the tracks between the junction and the fort as devices to avoid the need of such a certificate.
Is the Seaboard's suit to set aside the Commission's order within the jurisdiction of the lower court? If so, may its decree upholding the order be sustained?
Is the Central's counterclaim against the Seaboard within the jurisdiction of the District Court of three judges under 28 U.S.C. § 47 (28 U.S.C.A. § 47)?
Fort Benning is a United States military post in Georgia; the reservation includes 98,000 acres and has a population of more than 7,500. A railroad 6.8 miles long, built and owned by the United States, connects receiving and delivery tracks at the post, Fort Benning, with a station, Fort Benning Junction, at the intersection of the lines of the Seaboard and the Central. For more than eight years prior to October 16, 1932, the line between the junction and Fort Benning was operated by the Central under a license granted by the Secretary of War. The Central made Fort Benning a station on its system. For transportation between the junction and that station the Central collected arbitraries fixed by it in addition to the tariff charges applicable between the junction and points of origin or destination. Most of the freight handled was inbound. The Seaboard ceased to use its connection at the junction and interchanged traffic to and from Fort Benning with the Central at Columbus, about four miles from the junction.
In October, 1932, the Secretary of War revoked the Central's license and arranged to have the railroad operated by contractors, Page and Harris. He leased to them the line in question, and they agreed to transport all freight to and from the junction. They undertook to organize a corporation and to have it apply to the Commission for a certificate of public convenience and necessity to acquire and operate the line as a common carrier and then, by agreements with other carriers, to put in effect through routes and joint rates to and from Fort Benning as low as those to and from the junction and, out of its share of the rates so established, to take its pay for transportation performed by it.