The opinion of the court was delivered by: BYERS
There are before the court in this case in which the complaint was filed on June 15, 1956, a motion by plaintiff for a preliminary injunction pending trial of the issues tendered, and cross motions by defendants The Delaware, Lackawanna & Western R. Co. (D.L. & W.) and The New York, Chicago and St. Louis R. Co. (Nickel Plate) and Erie R. Co. (Erie), to dismiss the complaint under Fed.Rules Civ.Proc. rule 12(b), 28 U.S.C.A. for lack of jurisdiction over the subject matter, and for failure to state a claim, etc.
These motions were heard on June 20th and all briefs were received by the court on the 29th.
The matters in controversy have been heretofore explained in Civil Action 16321 in which an opinion was filed on May 9th of this year. Long Island Railroad Company v. United States, D.C., 140 F.Supp. 823. That case dealt with proceedings before the Interstate Commerce Commission in reference to the filing of tariffs by two of these defendant railroads, looking to the establishment of a so-called 'piggy-back' service from railroad terminals in Jersey City, to various places in Queens County (i.e. Borough of Queens, New York City).
The intended purpose is to be accomplished by the discharge on arrival at their Jersey City Yards, of trailer trucks carried on flat cars by the railroads; and the motor vehicle hauling of them over highways, to the points of destination.
The plaintiff invokes the jurisdiction of this court to prevent the proposed operation on the theory that what is contemplated is in essence the extension of the lines of the railroads from their Jersey City Yards to the ultimate place of delivery; and that this cannot be legally accomplished in the absence of the grant of a certificate of convenience and necessity, according to the provisions of Section 1(18) of the Interstate Commerce Act, 49 U.S.C.A. § 1(18).
This is the first cause as pleaded in the complaint and is the object of attack by the D.L. & W., Erie and Nickel Plate in support of their argument that there is thus exposed no legal claim for relief because the court is confronted by controlling precedents, being court and I.C.C. decisions, which require that the cause must be dismissed since it is doomed to fail.
Strictly this is not an argument addressed to the assertion that the court is without jurisdiction to entertain the cause.
Since it is clear that the function of deciding the issue of whether an extension of railroad lines is indeed contemplated, is judicial and not administrative, there is no occasion for discussion of the proposition.
Texas & Pacific Railway Company v. Gulf, etc., 270 U.S. 266, 46 S. Ct. 263, 70 L. Ed. 578 and Powell v. U.S., 300 U.S. 276, 57 S. Ct. 470, 81 L. Ed. 643, leave no room for doubt that the jurisdiction of the court is exclusive, and hence must be entertained once it has been enlisted.
Whether or not there is reason to believe that the plaintiff is likely to prevail does not touch the duty to adjudicate.
It is true that both of the cited cases involved an extension of trackage, while this does not. However the question of whether there is involved what may be, with apparent reason, contended to be an extension of lines, is present and must be dealt with.
The motions to dismiss for lack of jurisdiction as to the plaintiff's first cause will be denied.
The next aspect of the defendants' motions is not so simple of disposition; the argument comes down to this: that in view of the decisions in New York Dock Ry. v. Pennsylvania R. Co., 3 Cir., 62 F.2d 1010, certiorari denied 289 U.S. 750, 53 S. Ct. 694, 77 L. Ed. 1495; Trailers etc., Eastern Dist., 296 I.C.C. 219; and Arlington & Fairfax Ext., 228 I.C.C. 479, this court is required to hold that the law has been so far settled against the plaintiff's asserted cause, that in legal effect the Long Island has failed to state any claim for relief of which the court can take cognizance.
It must be owned that the opinion in the New York Dock case contains language which goes far ...