NEW YORK, O. & W. RY. CO. v. UNITED STATES (INTERSTATE COMMERCE COMMISSION, Intervener)

NEW YORK, O. & W. RY. CO. v. UNITED STATES (INTERSTATE COMMERCE COMMISSION, Intervener). (District Court, S. D. New York. May 31, 1926.) Commerce <§=92 — Court held without jurisdiodiction to enjoin Interstate Commerce» Commission from proceeding under so-called order practically reopening valuation proceedings; “any order” (Comp. St. § 993). Judicial Code, § 207 (Comp. St. § 993), giving District Court jurisdiction of suits to enjoin, annul, or suspend “any order” of Interstate Commerce Commission, does not include orders relating to practice or procedure of Commission, and gives court no jurisdiction of suit to enjoin Commission from proceeding under so-called order practically reopening valuation proceedings in respect to items not excepted to by railroad. [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Any.] In Equity. Suit by tbe New York, Ontario & Western Railway Company against tbe United States, with the Interstate Commerce Commission as intervening defendant. On motion for preliminary injunction. Petition dismissed. C. L. Andrus, of New York City, for petitioner. Blackburn Esterline, Asst. Sol. Gen., of Washington, D. C., for tbe United States. P. J. Farrell, of Washington, D. C., and Oliver E. Sweet, of Rapid City, S. D., for Interstate Commerce Commission. Before ROGERS and HOUGH, Circuit Judges, and BONDY, District Judge. [MAJORITY — PER CURIAM.] PER CURIAM. Tbe petitioner’s railroad, like tbe property of other transportation companies, has been valued by tbe Interstate Commerce Commission, which duly filed tbe tentative valuation, a document sufficiently described in Delaware & Hudson Co. v. United States, 266 U. S. 438, 45 S. Ct. 153, 69 L. Ed. 369. Tbe value asserted by this document to exist in petitioner’s railway is made up of a number of items, to tbe propriety of several of which items petitioner excepted within tbe time specified by law, but by silence it acquiesced in and it is said agreed to all tbe other items which went to make up tbe aggregate valuation declared by tbe Commission. Apparently some three years later, but while tbe petitioner’s objections to tentative valuation were still pending, tbe Commission, by a document called an order, practically reopened tbe valuation proceeding in respect of items never objected to or excepted to by petitioner, and by similar order fixed dates for tbe taking of evidence apparently in support of changes tbe Commission desired to make in its own findings. Thereupon petitioner brought this proceeding under Judicial Code, § 207 (Comp. St. § 993), giving jurisdiction to a court thus constituted to bear and determine “eases brought to enjoin, set aside, annul, or suspend in whole or in part any order of tbe Interstate Commerce Commission.” Tbe substantial complaint here is that tbe conduct of tbe Commission is not only annoying, expensive, and oppressive, but unlawful, in that it erroneously construes that section of tbe statute which declares that tentative valuations of tbe property of common carriers shall be completed and notice thereof shall be given “by registered letter to tbe said carrier.” And tbe Commission “shall allow thirty days in which to file a protest of tbe same with tbe Commission. If no protest is filed within thirty days said valuation shall become final as of tbe date thereof. ’ ’ Tbe hereinabove recited conduct’of tbe Commission practically interprets this statute to mean that, if a carrier files a protest to one item within thirty days, tbe Commission .is at liberty to reconsider all the- rest of the items whenever it pleases, and this is said to be unlawful. We are of opinion that this is a serious question, but are compelled to tbe conclusion that we have no power at present to consider it. It is quite true that tbe petitioner here asserts a complete lack of lawful power in tbe Commission- to make tbe order complained of. But that was exactly tbe ease in United States v. Illinois Central, 244 U. S. 82, 37 S. Ct. 584, 61 L. Ed. 1007. Yet it was there held, on tbe authority of Procter v. United States, 225 U. S. 282, 32 S. Ct. 761, 56 L. Ed. 1091, that, although tbe statute says that suits may he brought to annul, etc., “any order of the Interstate Commerce Commission,” that does not mean every order of the Commission, but only those mandates which compel “the doing or abstaining from doing of acts embraced by a previous affirmative command of the Commission. ’ ’ Therefore orders relating to practice or procedure could not be made the subject of suits like this one. There has been no affirmative order of the Commission; there is merely a direction that evidence be taken tending to change a previous finding of the Commission itself; non constat that that finding will ever be changed. If it is, another question will arise. All we can say now is that under the cases cited the petitioner cannot presently complain. Let the petition be dismissed, without costs.