Western Pacific Railroad Company v. United States/Dissent Douglas
Mr. Justice DOUGLAS, dissenting.
Under the Interstate Commerce Act, 49 U.S.C. § 1 et seq., as I read it, there are two ways of obtaining 'through routes.' One is to qualify as a 'connecting line' within the meaning of § 3(4) where a similarly situated competing carrier has been given a through route.  The other is to apply for a rate for a 'through route' under § 1(4).  In the event that a carrier refuses to establish a 'through route,' the Commission may 'upon complaint or upon its own initiative without complaint,' establish a 'through route' when 'deemed by it to be necessary or desirable in the public interest.' § 15(3). 
In this case appellants sought a 'through route' with certain appellee railroads on the same basis as the joint rates those railroads had established with the Southern Pacific. In an adversary proceeding the Commission denied the establishment of a 'through route' under § 1(4) saying:
'* * * The shippers urge that the rates and routes sought would give them more freedom of choice in the movement of their goods, would improve transportation service, time in transit, and car supply, and make available additional transit privileges. Nothing of record, however, indicates that the existing through routes and joint rates are inadequate to meet the needs of the shipping public. In fact the failure of the shipper witnesses to initiate in the last 31 years a determined campaign to persuade the defendants of the necessity of establishing through routes between points on the complainants' lines in California and points on the defendants' lines in the Northwest, is at least some indication of the adequacy of the existing routes. The expression 'in the public interest' means more than a mere desire on the part of shippers for something that would merely be convenient or desirable for them. This desire must be weighed against the effect on other carriers and the general public. On the basis of this record, we cannot find that the public interest would be served by requiring the establishment of joint rates and through routes which are substantially slower and costlier than the present routes.' 316 I.C.C. 795, 810-811.
What the Court does today is to let § 3(4) swallow § 1(4) by letting any segment of a multi-carrier through route become a 'connecting line.'  For then the ban in § 3(4) on discriminatory rates in effect forces the establishment of 'through routes' with 'just and reasonable rates' as required by § 1(4), without satisfying any of the conditions of § 1(4) and of § 15(3). Indeed after today, the whole protective scheme of § 15(3) which makes the Commission the guardian of 'through routes' (see St. Louis South-western R. Co. v. United States, 245 U.S. 136, 142-143, 38 S.Ct. 49, 51, 62 L.Ed. 199) breaks down.
In addition to the conditions set forth in § 15(3) the Commission's power to compel the establishment of through routes is limited by § 15(4), which prevents the Commission from establishing any through route requiring a carrier to 'short haul' itself except where particular circumstances (enumerated in § 15(4)) are found to exist. See Thompson v. United States, 343 U.S. 549, 552-556, 72 S.Ct. 978, 980, 982, 96 L.Ed. 1134; Denver & R. G. W. R. Co. v. Union P.R. Co., 351 U.S. 321, 325, 76 S.Ct. 982, 984, 100 L.Ed. 1220 et seq.; Chicago, M., St. P. & P.R. Co. v. United States, 366 U.S. 745, 81 S.Ct. 1630, 6 L.Ed.2d 772. Can a carrier after today's decision be compelled to 'short haul' itself where an internal segment of a multi-carrier through route invokes § 3(4)? 
Section 3(4) narrowly construed to include only lines that physically abut, would, of course, lift some cases from § 1(4) and from § 15. But those are the exceptions, relatively few in number. The Court multiplies those almost without end when it holds that any interior segment of an established multi-carrier through route is a 'connecting line' within the meaning of § 3(4).
Today's decision uproots the established concept of 'through routes.' As we stated in Thompson v. United States, 343 U.S. 549, 557, 72 S.Ct. 978, 983 (quoting from the Commission's 21st Annual Report to Congress):
'A through route is a continuous line of railway formed by an arrangement, express or implied, between connecting carriers. * * * Existence of a through route is to be determined by the incidents and circumstances of the shipment, such as the billing, the transfer from one carrier to another, the collection and division of transportation charges, or the use of a proportional rate to or from junction points or basing points. These incidents named are not to be regarded as exclusive of others which may tend to establish a carrier's course of business with respect to through shipments.'
'In short, the test of the existence of a 'through route' is whether the participating carriers hold themselves out as affering through transportation service. Through carriage implies the existence of a through route whatever the form of the rates charged for the through service.' Ibid. (Italics added.)
And see Denver & R. G. W. R. Co. v. Union P.R. Co., 351 U.S. 321, 327, 330, 76 S.Ct. 982, 985, 987, 100 L.Ed. 1220.
Here there has been no 'holding out' by the participating carriers (either consensually or as a result of any Commission action) that offers this interior segment of this multi-carrier route to become a part of any 'through route.' If we are to allow § 1(4) and §§ 3(4) and 15(3) to exist in harmony, we must adhere to that requirement, restricting 'connecting line' to those lines that have a direct physical connection with the allegedly discriminating carrier.
Atlantic Coast Line R. Co. v. United States, 284 U.S. 288, 52 S.Ct. 171, 76 L.Ed. 298, is not opposed. While the line in question was only a segment in a multi-carrier system, it had 'through routes' with the other carriers in controversy. Id., at 292, 52 S.Ct. at 172. The words 'connecting lines'  were therefore used to include 'all the lines making up a through route.' Id., at 293, 52 S.Ct. at 173. But there is no 'through route' here, the defendants not having agreed to one and the Commission having expressly disallowed one pursuant to its power under § 15(3).
^1 Section 3(4) provides:
'All carriers subject to the provisions of this chapter shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distribution of traffic that is not specifically routed by the shipper. As used in this paragraph the term 'connecting line' means the connecting line of any carrier subject to the provisions of this chapter or any common carrier by water subject to chapter 12 of this title.' (Italics added.)
The discriminatory refusal to enter into through routes has been held to constitute a violation of 3(4). See Dixie Carriers, Inc. v. United States, 351 U.S. 56, 76 S.Ct. 578, 100 L.Ed. 934.
^2 Section 1(4) provides in part:
'It shall be the duty of every common carrier subject to this chapter to provide and furnish transportation upon reasonable request therefor, and to establish reasonable through routes with other such carriers, and just and reasonable rates, fares, charges, and classifications applicable thereto; * * *.'
^3 Section 15(3) provides in part:
'The Commission may, and it shall whenever deemed by it to be necessary or desirable in the public interest, after full hearing upon complaint or upon its own initiative without complaint, establish through routes, joint classifications, and joint rates, fares, or charges, applicable to the transportation of passengers or property by carriers subject to this chapter, or by carriers by railroad subject to this chapter and common carriers by water subject to chapter 12 of this title, or the maxima or minima, or maxima and minima, to be charged, and the divisions of such rates, fares, or charges as hereinafter provided, and the terms and conditions under which such through routes shall be operated.'
^4 The term 'multi-carrier through route' is used here to indicate a route composed of two or more carriers which have established among themselves a through route with joint rates. This, of course, describes the Bieber route from southern California to Portland.
^5 Congress has refused, although requested to do so by the Commission, to repeal § 15(4). See Thompson v. United States, supra, 343 U.S. at 555, 72 S.Ct. at 982.
^6 Section 3(4) was not involved. What was in litigation was the construction of one of its earlier orders allowing one carrier to lease another. Commission approval was accompanied by conditions assuring 'equal service, routing, and movement of competitive traffic to and from all connecting lines' reached by the lessee. 284 U.S., at 292, 52 S.Ct., at 172. It was in that context that the Court held that carriers were protected even though their rails did not 'physically abut' on the rails of the lessee. 284 U.S., at 293, 52 S.Ct., at 173.