their own right of way, and also on private industrial tracks off the carriers' right of way on the private property of the industries served. Such services are included in the established rates, unless in express terms the published tariffs otherwise provide. Car Spotting Charges, 34 I.C.C. 609.
We, therefore, reach the conclusion that "spotting services" are recognized in law as common-carrier service to which the shippers are entitled, and which the carriers are in duty bound to perform. In fact, the courts have held that writs of mandamus and mandatory injunctions will lie to enforce this right and compel this duty. Missouri Pacific R.R. Co. v. Larabee Flour Mills Co., 211 U.S. 612, 29 S. Ct. 214, 53 L. Ed. 352.
It is also certain that the carriers may either do this "spotting service" themselves or engage others, including shippers and owners of property transported to do it, and pay therefor a reasonable compensation out of their freight rates, without violating the law. Mitchell Coal & Coke Co. v. Pennsylvania Railroad Company, 230 U.S. 247, 33 S. Ct. 916, 57 L. Ed. 1472. But this will not include special or particular "spotting service" such as described in New York Central & Hudson River R.R. Co. v. General Electric Company, 219 N.Y. 227, 114 N.E. 115, 1 A.L.R. 1417, over an intricate system of trackage when the railroad is not permitted to enter to extend any "spotting service" at all.
Typical of the circumstances which relieve the carrier from the duty of "spotting" cars may be noted: (a) Where an industry refuses to permit the railroad to enter upon the private industrial tracks; (b) where the physical condition and layout of the private industrial tracks will not accommodate the carrier's locomotive power without hazard or excessive delay; (c) where the industry occupies large areas with many scattered plants, connected by an intricate system of industrial tracks and used chiefly as industrial facilities.
In the instant case, we find no circumstances which would relieve the carriers involved from the duty of "spotting" the cars as a part of the transportation imposed upon them by law. We further find that such "spotting service" is covered by the railroad's published tariffs, and is a part of the line-haul freight charge, and that where the plaintiffs do this "spotting service" themselves, they are entitled to the compensation provided for in the published freight tariffs.
Commissioner Mahaffie, dissenting from the majority report of the commission, has, in report contained in the exhibits attached to the plaintiffs' petitions in the instant cases, clearly stated why the cease-and-desist orders issued by the commission in the instant cases are not based on the jurisdictional findings necessary to support these orders and that the injunction sought should be granted in all these cases.
As we view the law, the commission was without power to prohibit entirely allowances for doing "spotting service." It could review these allowances and determine whether they were unreasonable, unjustly preferential, unduly discriminatory, or otherwise unlawful. Section 15, pars. (1) and (13) of Interstate Commerce Act (49 U.S.C.A. § 15 (1, 13); Interstate Commerce Commission v. Louisville & Nashville Railroad Company, 227 U.S. 88, 92, 33 S. Ct. 185, 57 L. Ed. 431; Southern Pacific Company v. Interstate Commerce Commission, 219 U.S. 433, 31 S. Ct. 288, 55 L. Ed. 283; Interstate Commerce Commission v. Stickney, 215 U.S. 98, 105, 30 S. Ct. 66, 54 L. Ed. 112; Interstate Commerce Commission v. Northern Pacific Railway Company, 216 U.S. 538, 544, 30 S. Ct. 417, 54 L. Ed. 608; United States v. Baltimore & Ohio Railroad Company, 293 U.S. 454, 55 S. Ct. 268, 79 L. Ed. 587.
No such findings were made in the instant cases. The courts have uniformly held that to support a cease-and-desist order by the commission, it must make the necessary quasi-jurisdictional findings of fact, or the order is void. Florida v. United States, 282 U.S. 194, 215, 51 S. Ct. 119, 75 L. Ed. 291; United States v. Chicago, Milwaukee, St. Paul & P. Railway Company, 294 U.S. 499, 55 S. Ct. 462, 79 L. Ed. 1023.
Our conclusion is that the orders of the commission complained of are beyond its statutory power, and that the injunction prayed for should issue.
Findings of fact, conclusions of law, and decree in accordance with this opinion, may be submitted.
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