ing rate, and whether traffic will move at a given rate is always some evidence as to whether the rate responds to the value of the service performed. The Commission had this and the other matters to which reference is made to guide in the conclusion reached. The rate was thus not fixed arbitrarily or without considerations which justified it; and above all not for the purpose of enforcing a policy inaugurated by the carrier, which it was held could not equitably be abandoned; but in the exercise of due judgment, after full consideration of the entire subject, as shown by the reasons given for it; and this being so the order was lawfully made.

The petition will therefore be dismissed with costs.

United States Commerce Court.

No. 60.-FEBRUARY SESSION, 1912.

BALTIMORE & OHIO SOUTHWESTERN RAILROAD COMPANY AND NORFOLK & WESTERN RAILWAY COMPANY, PETITIONERS,

v.

UNITED STATES OF AMERICA AND CINCINNATI & COLUMBUS TRACTION COMPANY, RESPONDENTS. INTERSTATE COMMERCE COMMISSION, INTERVENER.

ON MOTION FOR PRELIMINARY INJUNCTION.

For opinion of the Interstate Commerce Commission, see 20 I. C. C. Rep., 486.

Mr. Edward Barton, Mr. Theodore W. Reath, and Mr. R. Walton Moore, with whom Mr. Joseph I. Doran was on the brief, for the petitioners.

Mr. Winfred T. Denison, Assistant Attorney General, and Mr. Blackburn Esterline, special assistant to the Attorney General, for the United States.

Mr. C. Bentley Matthews for the Cincinnati & Columbus Traction Company.

Mr. Charles W. Needham for the Interstate Commerce Commission.

Before KNAPP, Presiding Judge, and ARCHBALD, HUNT, CARLAND, and MACK, Judges.

ARCHBALD, Judge:

[April 9, 1912.]

This is a bill to set aside an order of the Interstate Commerce Commission. The proceedings before the Commission were instituted by the Cincinnati & Columbus Traction Company, an electric suburban railway, incorporated under the laws of Ohio, against the Baltimore & Ohio Southwestern Railroad and the Norfolk & Western Railway, two separate trunk lines. running east and west across the State of Ohio. The proceedings were taken under the first section of the interstate-commerce act to compel a switch connection at separate points with each of the railroads mentioned, and also to secure through routes and joint rates under the fifteenth section. There was a prayer in the latter connection that the railroads be required to exchange cars and equipment. The Commission in a joint order against both roads substantially granted the relief prayed for.

The provisions of the act with regard to the compelling of switch connections are as follows:

"Any common carrier subject to the provisions of this act, upon application of any lateral, branch line of railroad, or of any shipper tendering interstate traffic for transportation, shall construct, maintain, and operate upon reasonable terms a switch connection with any such lateral, branch line of railroad, or private side track which may be constructed to con

nect with its railroad, where such connection is reasonably practicable and can be put in with safety and will furnish sufficient business to justify the construction and maintenance of the same; and shall furnish cars for the movement of such traffic to the best of its ability without discrimination in favor of or against any such shipper. If any common carrier shall fail to install and operate any such switch or connection as aforesaid, on application therefor in writing by any shipper or owner of such lateral, branch line of railroad, such shipper or owner of such lateral, branch line of railroad may make complaint to the Commission, as provided in section thirteen of this act, and the Commission shall hear and investigate the same and shall determine as to the safety and practicability thereof and justification and reasonable compensation therefor, and the Commission may make an order, as provided in section fifteen of this act, directing the common carrier to comply with the provisions of this section in accordance with such order, and such order shall be enforced as hereinafter provided for the enforcement of all other orders by the Commission, other than the orders for the payment of money."

The words in italics were not in the act at the time the application for the switches in question was made to the railroads, nor at the time of the complaint to the Commission, which followed, but were introduced over a year afterwards, in June, 1910, by way of amendment. At the time the proceedings were instituted, therefore, the traction company had no right to file the complaint, and the Commission, in

consequence, except for the change in the law, would have been without authority to entertain it. Interstate Commerce Commission v. D. L. & W. R. R., 216 U. S., 531. After the testimony had been taken, however, and before any order had been entered, in March, 1910, immediately following the decision just cited, the case was reopened at the instance of the traction company to permit two shippers along the line of the road, one at Marathon and the other at Hillsboro, to be added as complainants. This was objected to by the railroads on the ground that it could not overcome the want of jurisdiction when the case originated, and could not in any respect supply the necessary preliminary application in writing, which is required by the statute as the basis of the subsequent proceedings. The Commission overruled the objection, and, having considered the case on the merits, made the following order:

"This case coming on to be further considered, and it appearing that the parties in interest have failed to put in effect the findings made by this Commission in its report herein, dated March 14, 1911, and that the above-named complainant petitions by counsel for an order of relief in the premises:

"It is ordered that defendant The Baltimore & Ohio Southwestern Railroad Company be, and it is hereby, notified and required to construct, on or before the 15th day of February, 1912, and thereafter to maintain and operate during a period of not less than two years, a switch connection for the transfer of interstate traffic to and from the line of the above-named