294 U.S.

50
55 S.Ct. 326
79 L.Ed. 752

UNITED STATES ex rel. CHICAGO GREAT WESTERN R.

CO. et al.
v.
INTERSTATE COMMERCE COMMISSION et al. *
No. 234.
Argued and Submitted Dec. 13, 1934.
Decided Jan. 7, 1935.

Mr. Frank H. Towner, of Chicago, Ill., for petitioners.

[Argument of Counsel from page 51 intentionally omitted]

Mr. Daniel W. Knowlton, of Washington, D.C., for respondent Interstate

Commerce Commission.

Mr. Samuel W. Sawyer, of Kansas City, Mo., for respondent Kansas City
Terminal Ry. Co.

Messrs. Charles H. Woods, of Chicago, Ill., Jonathan C. Gibson, of

Washington, D.C., E. A. Boyd, Bruce Scott, Walter McFarland, W. F.
Dickinson, and W. F. Peter, all of Chicago, Ill., J. M. Souby, of Omaha, Neb.,
Francis W. Clements, of Washington, D.C., and H. H. Larimore, of St. Louis,
Mo., for respondents Atchison, T. & S.F. Ry. Co. and others.

Mr. Justice ROBERTS delivered the opinion of the Court.

This cause calls for the application of familiar principles governing the
issuance of the writ of mandamus. The petitioners urge that the courts below
erred in denying the writ. For an understanding of the contention the
circumstances out of which the litigation arose should be stated.

Prior to the year 1906, ten railroads entering Kansas City used a union depot.
Two others, the Chicago Great Western and the Kansas City Southern (the
petitioners), used the station belonging to the latter. The union station was
inadequate, and there was agitation for better facilities. As a consequence, the
ten roads set about to acquire the necessary property and rights and to construct
a new union terminal. The instrumentality created for the purpose was the
respondent the Kansas City Terminal Railway Company, a corporation
organized by the railroads, for whose stock they subscribed in equal shares.
This company acquired from the constituent roads and from others the property
and franchises requisite to the construction of the terminal. In addition to the
moneys subscribed for stock, the terminal company borrowed in excess of
$50,000,000.

The financing and operation of the project was governed by an operating

agreement between the railroads, the terminal company, and a trustee, which
provided, amongst other things, for the construction, maintenance, and
operation of the terminal and its use by the proprietary companies throughout a
term of two hundred years; equal ownership of the terminal company's stock;
the admittance of other railroads on equal terms as to ownership of stock and
use of the property by consent of two-thirds of the participants not in default
under the agreement; issuance and sale of the terminal company's bonds
secured by mortgage on its property; payment by each proprietary road of an
equal share of taxes and governmental charges of the company and of interest
and principal of its mortgage indebtedness; payment of a defaulting railroad's
share of these charges by the remaining proprietaries in equal shares; exclusion
of any defaulting road from the use of the facilities; the sharing of expenses of
maintenance and operation by the using companies in proportion to each one's
use. The stock of the terminal company was deposited with a trustee, subject to
a voting trust, to prevent its transfer to any one not a party to the operating
agreement. The roads also assigned the operating agreement to the mortgage
trustee as additional security. In 1910 the petitioners became parties to the
agreement pursuant to its provisions.

The appointment of receivers in 1915 for the Missouri, Kansas & Texas
Railway Company, one of the proprietary railroads, was followed by
foreclosure under its mortgages. The decree of sale in foreclosure permitted the
purchaser to adopt or reject any executory contract of the debtor. The
purchasers organized the Missouri, Kansas & Texas Railroad Company
(hereinafter designated M., K. & T.) to take title to the property, and that
company elected not to be bound by the operating agreement, with the result
that it was without terminal facilities in Kansas City. Because of this lack, it
applied to the Interstate Commerce Commission pursuant to section 3(4) of the

Interstate Commerce Act1 for an order granting it the right to use the terminal,
conditioned on payment of compensation proportioned to use. A temporary
order was issued, and the matter set for final hearing. Prior to the hearing, all of
the eleven remaining railroads, parties to the operating agreement, intervened.
Those designated as the larger users of the terminal opposed the granting of the
petition. Those termed the smaller users (including the petitioners in the present
case) asked that, if the prayer of the M., K. & T. should be granted, they be
afforded relief from the hardship and inequality of burden imposed upon them
by the agreement by revision of the existing arrangement so that they might
thereafter make use of the terminal upon terms as favorable as might be
greanted the M., K. & T. They based their request upon sections 3(1)(3)(4) and
15a of the act to regulate commerce, as amended, 49 USCA 3(1, 3, 4), 15a.
A motion was made to strike the intervening petitions of the small users on
various grounds, amongst them that the Commission had no power to make an
order superseding, modifying, nullifying, or reforming the operating contract.
10

The matter came on for hearing, evidence was presented, and the petitioners
showed that their use of the terminal over a period of years had averaged less
than 3 per cent. of the total use, while their contribution to the interest and taxes
amounted to 8 1/3 per cent. of the total. For example, in 1932 each of the the
basis of actual use, some of the larger users would have paid approximately
$600,-twelve proprietary railroads paid approximately $200,000 on account of
interest and taxes. If these charges had been divided on 000 and the petitioners
only a little more than $50,000 each. The Commission's report indicates that the
operating agreement is inequitable, since it calls for payments by the smaller
lines in excess of benefits derived, and permits the larger lines to enjoy the use
of the facilities at an expense, proportioned to use, much less than that imposed
upon the smaller users.

11

The Commission filed its report and order November 10, 1925.2 With respect to
the relief sought by the M., K. & T., it developed there was pending in a federal
court an action to determine the legality of that road's election to denounce the
operating agreement. The Commission therefore withheld action, ordering that,
if the decision of the court should be that the new railroad had no right of
abandonment, the petition would, upon motion, be dismissed; but, if the court
should sustain the right of abrogation, the M., K. & T. might then move for an
order granting it the use of the terminal upon an agreed compensation, and, if
no agreement could be reached, upon such terms as the Commission might fix.
The intervening petitions of the smaller users were dismissed. So matters stood
until the right of the M., K. & T. to reject the agreement had been judicially
affirmed. Thereupon that company applied to the Commission for the
ascertainment of the compensation it should pay for use of the terminal, and the

small users, including the present petitioners, presented petitions for rehearing
upon the order of November, 1925, dismissing their interventions. These
petitions were denied June 1, 1933, and the Commission proceeded to hear the
case as one involving only the compensation to be paid by the M., K. & T. for
use of the terminal. The petitioners then applied to the Supreme Court of the
District of Columbia for a writ of mandamus directed to the Commission
requiring it to vacate its orders of November, 1925, and June, 1933, with
respect to the petitioners' interventions, and to hear and decide upon the merits
the issues thereby raised. A rule to show cause issued, the Commission and
certain interveners answered, the petitioners demurred to the answers, the court
overruled the demurrers, and, as the petitioners elected to stand thereon,
dismissed the petitions. Upon appeal, the Court of Appeals of the District
affirmed the judgment.3 We granted a writ of certiorari.4
12

The petitioners rely principally upon paragraphs (1), (3), and (4) of section 3 of
the act. The paragraphs are quoted in the margin.5 Their position is that, if the
M., K. & T. is granted the use of the terminal pursuant to section 3(4) on a basis
more favorable than that available to its predecessor and to the petitioners under
the operating agreement, unlawful discrimination forbidden by section 3 will
result; and, further, that they are entitled to petition for the grant of use upon
compensation to be fixed by the Commission under paragraph (4) although
they are parties to the agreement fixing their rights in the terminal. The
respondents, by their motion to dismiss, challenged the power of the
Commission to grant the relief asked. That body thus stated the problem
presented:

13

'Whether, then, Congress has or has not appropriately exerted its plenary power
directly or through us is a question at the threshold of each case, and it remains
here to consider whether the particular power invoked by the interveners has
been conferred upon us.'

14

After a discussion of paragraph (4), the Commission concluded:

15

'The power and authority thus invoked are not conferred by the quoted
paragraph.'

16

With respect to paragraph (3) it was held that, as the charges in question were
essentially capital charges, they have no relation, direct or indirect, to the
interchange of traffic between the several lines using the terminal, as
contemplated by this paragraph, and the Commission was without authority
thereunder to make the requested order.

17

Referring to paragraph (1), which prohibits undue prejudice or preference as

between particular persons, firms, corporations, or localities, or particular
descriptions of traffic, the Commission said:

18

,'Assuming, without now deciding, that the provisions of paragraph (1) are
broad enough to embrace, as between the parties thereto, a joint terminal
agreement into which all the lines have voluntarily entered and for which they
are mutually responsible, the distribution of the charges here in question is not
shown to fall within their condemnation. Those charges are distinctly capital
charges, based upon the terminal property itself, not upon its use, in no sense
assumed by or chargeable to the proprietary lines as compensation for uses they
either do or may make, and are divided among the lines in the proportions of
their equitable titles to or interests in the property. For their respective uses of
the property the lines severally assume maintenance and operating expenses in
corresponding proportions. This is not shown to be undue prejudice or
preference or unjust discrimination. Each proprietary pays an equal share of the
aggregate interest and taxes upon its equal share in the aggregate property.' A
contention that the case came within the declaration of policy of section 15a,
with respect to the adjustment of rates so that the carriers as a whole or by
groups will under honest, efficient, and economical management earn a fair
return upon their railway property used in transportation was answered by the
Commission thus:

19

'Neither expressly nor by implication does the provision embrace a direct or

indirect revision or reformation of any such contract, lawful in itself as far as
appears, as that here in question; and we are unable to find the requisite power
or authority in any other provision of the act.'

20

The petitioners insist that under the plain terms of the act the Commission had
jurisdiction of their complaints, but refused to entertain them, and that
mandamus is the appropriate remedy to compel a hearing and determination
upon the merits. The respondents reply that the act plainly confers no such
jurisdiction, or at least that the matter is not so clear as to warrant interference
by mandamus, and, in the alternative, that the Commission did take jurisdiction
of the complaints and decide the merits. The Court of Appeals, without
deciding whether the act confers authority to grant the relief, held that the
Commission in fact took jurisdiction, heard the cases, and decided as matter of
law that it was without power or authority in the premises; that this constituted
a decision which, whether right or wrong as matter of law, was impregnable to
the writ of mandamus. We concur in the result reached, but for reasons
differing somewhat from those announced by that court.

21

1. The language used by the Commission with respect to the application of

paragraph (1) of section 3 of the act lends color to the respondents' argument
that upon consideration of the whole record the Commission reached the
conclusion that the enforcement of the operating agreement against the
petitioners while exempting the new applicant, the M., K. & T., from its terms,
did not amount to discrimination as defined by the act. If this is a proper
characterization of that body's action, no court can by mandamus compel it to
alter its decision. Where judgment or discretion is reposed in an administrative
agency and has by that agency been exercised, courts are powerless by the use
of the writ to compel a different conclusion. 6 We are, however, of opinion that,
fairly considered, the report does not bear the construction contended for, but
shows the Commission, upon analysis of the complaint and the evidence, found
that the act did not confer authority to accord the relief demanded.

22

2. The petitioners insist that, as they stated a case alleged to fall within the
provisions of the act, they were entitled to have the Commission consider the
case as stated, and this right they were denied. They say the writ ought to issue
to compel that body to hear and decide their case. The Court of Appeals,
answering the contention, held that the Commission did in fact entertain the
complaint, decided the cause, and, even if it erred as matter of law in respect of
its statutory power, cannot be coerced by mandamus to reverse its decision. The
petitioners say that the fallacy in this reasoning is that, whether the Commission
refuses to receive a complaint, or upon receiving it entertains and grants a
motion to dismiss for lack of jurisdiction, its action comes to the same thing,
namely, a refusal of jurisdiction. We think that this is so. Whether an
administrative tribunal refuses to hear, or upon a hearing determines that as a
matter of law it lacks power to act, it is either correct in its conclusion or
incorrect, and the question is whether, if it errs in refusing to act, it is
compellable be mandamus to proceed.

23

3. If beyond peradventure the act does not confer upon the Commission the
power invoked by a complainant, the writ will not be granted.7 If on the other
hand power and authority are plainly found in the act, and the Commission
erroneously refuses to exercise such power and authority, mandamus is the
appropriate remedy to compel that body to proceed and to hear the case upon
the merits. The fact that the complaint has been heard and, after hearing, the
Commission has refused to enter an order because in its opinion no authority
for such action is conferred by the statute, will not avail with the courts to
prevent mandamus to correct a plain error of the Commission in renouncing
jurisdiction.8

24

4. The ultimate question, then, upon the answer to which the decision of this

24

4. The ultimate question, then, upon the answer to which the decision of this
case must turn, is whether, in holding that the statute granted it no authority to
act in the premises, the Commission was so plainly and palpably wrong as
matter of law that the writ should issue. It is to be noted that the solution of this
question does not depend upon whether in a proper case this court would reach
the same conclusion as that of the Commission. If that body had taken
jurisdiction and granted relief, a remedy would have been available to the
respondents by the filing of a bill in equity to set aside the order and to enjoin
its enforcement.9 Had the matter been thus presented, it would have been
incumbent upon the courts, however doubtful the question, to decide it. But the
order here made was negative in form and substancethe refusal of relief
and the remedy by suit in equity was therefore not available to the petitioners.10
The absence of a remedy by suit or action to redress alleged error of an
administrative body is not in itself sufficient to invoke the power of mandamus.
Not only must there be no such remedy, but it must appear that the
administrative tribunal was plainly and palpably wrong in refusing to take
jurisdiction. Is this shown in the present instance? We think not. The
Commission, in a careful and painstaking review of the legislation defining its
powers, professed itself unable to find a grant of authority to set aside
commitments in the nature of capital charges for property owned and used by
the carriers. It adverted to the fact that paragraph (1) of section 3 of the act was
directed to discriminations, preference, and prejudice in the performance of the
duties of the carrier towards the public which dealt with them as carriers, and
related particularly to rates, fares, and charges, and that paragraph (3) was
adopted to prevent discriminations and unfair practices as between carriers in
interchange of freight and traffic. The language now found in these paragraphs
has remained without amendment since the adoption of the original act in 1887.
It concluded that petitioners could not invoke the new paragraph (4) added to
section 3 by the Transportation Act 1920, because it was intended to give a
right of use to one then having no such right in a terminal owned by another
line, and was inapplicable to a case like the present, where the petitioners by
their own voluntary agreement were entitled, and for many years had been
entitled, to the use of a terminal of which they were in effect part owners. The
Commission found itself unable to hold that the broad policy declared by
section 15a so altered the meaning of section 3 as to change the nature of the
discriminations and practices denounced by that section. Its decision was not
unanimous; certain of the members being of the opinion that power to grant the
relief demanded could be spelled out of the act reading it as a whole and as
amended by the Transportation Act 1920. This statement of the views of the
Commission indicates that its conclusion was not so clearly erroneous as to call
for the exercise of the extraordinary power involved in the issuance of
mandamus. Where the matter is not beyond peradventure clear, we have
invariably refused the writ, even though the question were one of law as to the

extent of the statutory power of an administrative officer or body.11 We think

this principle applicable in the present case, and that the courts below were
right in refusing the writ.
25

The judgment is affirmed.

Rehearing denied 294 U.S. 731, 55 S.Ct. 504, 79 L.Ed. -.

49 U.S.C. 3(4), 49 USCA 3(4).

Missouri-Kansas-Texas R. Co. v. K.C.T. Ry. Co., 104 I.C.C. 203.

71 F.(2d) 336.

293 U.S. 545, 55 S.Ct. 98, 79 L.Ed. -.

'(1) It shall be unlawful for any common carrier subject to the provisions of this
chapter to make or give any undue or unreasonable preference or advantage to
any particular person, company, firm, corporation, or locality, or any particular
description of traffic, in any respect whatsoever, or to subject any particular
person, company, firm, corporation, or locality, or any particular description of
traffic, to any undue or unreasonable prejudice or disadvantage in any respect
whatsoever. * * *
'(3) All carriers, engaged in the transportation of passengers or property, 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 for the receiving, forwarding, and delivering
of passengers or property to and from their several lines and those connecting
therewith, and shall not discriminate in their rates, fares, and charges between
such connecting lines, or unduly prejudice any such connecting line in the
distribution of traffic that is not specifically routed by the shipper.
'(4) If the commission finds it to be in the public interest and to be practicable,
without substantially impairing the ability of a carrier owning or entitled to the
enjoyment of terminal facilities to handle its own business, it shall have power
to require the use of any such terminal facilities, including main line track or
tracks for a reasonable distance outside of such terminal, of any carrier, by
another carrier or other carriers, on such terms and for such compensation as
the carriers affected may agree upon, or, in the event of a failure to agree, as the
commission may fix as just and reasonable for the use so required, to be
ascertained on the principle controlling compensation in condemnation

proceedings. Such compensation shall lbe paid or adequately secured before the
enjoyment of the use may be commenced. If under this paragraph the use of
such terminal facilities of any carrier is required to be given to another carrier
or other carriers, and the carrier whose terminal facilities are required to be so
used is not satisfied with the terms fixed for such use, or if the amount of
compensation so fixed is not duly and promptly paid, the carrier whose
terminal facilities have thus been required to be given to another carrier or other
carriers shall be entitled to recover, by suit or action against such other carrier
or carriers, proper damages for any injuries sustained by it as the result of
compliance with such requirement, or just compensation for such use, or both,
as the case may be.' 49 U.S.C. 3(1), (3), (4), 49 USCA 3(1, 3, 4).
6

Interstate Commerce Commission v. United States ex rel. Waste Merchants'

Association, 260 U.S. 32, 43 S.Ct. 6, 67 L.Ed. 112; Interstate Commerce
Commission v. United States, 289 U.S. 385, 394, 53 S.Ct. 607, 77 L.Ed. 1273.
Compare Wilbur v. United States, 281 U.S. 206, 218, 50 S.Ct. 320, 74 L.Ed.
809.

Interstate Commerce Commission v. U.S. ex rel. Los Angeles, 280 U.S. 52, 50
S.Ct. 53, 74 L.Ed. 163.

Interstate Commerce Commission v. United States of America, 224 U.S. 474,

484, 32 S.Ct. 556, 56 L.Ed. 849; Louisville Cement Co. v. Interstate Commerce
Commission, 246 U.S. 638, 642, 38 S.Ct. 408, 62 L.Ed. 914; United States ex
rel. Kansas City Southern Ry. Co. v. Interstate Commerce Commission, 252
U.S. 178, 187, 40 S.Ct. 187, 64 L.Ed. 517. Compare Interstate Commerce
Commission v. United States, 289 U.S. 385, 393, 53 S.Ct. 607, 77 L.Ed. 1273.

U.S.C. tit. 28, 41(28); 4347, inclusive, 28 USCA 41(28), 4347.

10

Interstate Commerce Commission v. United States, 289 U.S. 385, 388, 53 S.Ct.
607, 77 L.Ed. 1273.

11

Reeside v. Walker, 11 How. 272, 289, 13 L.Ed. 693; United States ex rel.
International Contracting Co. v. Lamont, 155 U.S. 303, 308, 15 S.Ct. 97, 39
L.Ed. 160; United States ex rel. Riverside Oil Co. v. Hitchcock, 190 U.S. 316,
323, 23 S.Ct. 698, 47 L.Ed. 1074; Bates & Guild Co. v. Payne, 194 U.S. 106,
108, 24 S.Ct. 595, 48 L.Ed. 894; United States v. Fisher (Ness v. Fisher), 223
U.S. 683, 691, 32 S.Ct. 356, 56 L.Ed. 610; United States ex rel. Hall v. Payne,
254 U.S. 343, 347, 41 S.Ct. 131, 65 L.Ed. 295; Wilbur v. United States, 281
U.S. 206, 219, 50 S.Ct. 320, 74 L.Ed. 809; United States v. Wilbur, 283 U.S.
414, 420, 51 S.Ct. 502, 75 L.Ed. 1148; Interstate Commerce Commission v.
New York, N.H. & H.R. Co., 287 U.S. 178, 191, 203, 53 S.Ct. 106, 77 L.Ed.
248.