'regulation' or 'practice' 'made or imposed by the authority of any State.' The Supreme Court has warned us about the word 'practice' as used in this Act:
'The word 'practice,' considered generally and without regard to context, is not capable of useful construction. If broadly used, it would cover everything carriers are accustomed to do. Its meaning varies so widely and depends so much upon the connection in which it is used that Congress will be deemed to have intended to confine its application to acts or things belonging to the same general class as those meant by the words associated with it.' Baltimore & O.R. Co. v. United States, 1928, 277 U.S. 291, 299-300, 48 S. Ct. 520, 522, 72 L. Ed. 885.
We think that if the paragraphs set out above are read in all their language, without pulling words out of context, the Commission was right in saying that Section 13 gave it no authority to do what the plaintiff asks.
The conclusion is fortified by some applications of the legislative language by the courts. Thus it has been held that a state imposed full crew requirement was not a 'regulation' or 'practice' within § 13(3) and (4). Missouri Pac. R. Co. v. Norwood, 1931, 283 U.S. 249, 51 S. Ct. 458, 75 L. Ed. 1010, modified, 283 U.S. 809, 51 S. Ct. 652, 75 L. Ed. 1428, affirming D.C.W.D.Ark.1930, 42 F.2d 765. Likewise, state demurrage charges were held matters of 'car service' not within the scope of § 13. Chicago, M., St. P. & P.R. Co. v. McCree & Co., D.C.D.Minn.1950, 91 F.Supp. 57. Cf. Railroad Commission of State of Wisconsin v. Chicago, B. & Q.R. Co. 1922, 257 U.S. 563, 584-587, 42 S. Ct. 232, 66 L. Ed. 371.
Plaintiff also pins some hope on Section 3(1) of the Interstate Commerce Act. This section provides as follows:
§ 3(1) 'Undue preferences or prejudices prohibited.
'It shall be unlawful for any common carrier subject to the provisions of this chapter to make, give, or cause any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic, in any respect whatsoever; or to subject any particular person, company, firm, corporation, association, locality, port, port district, gateway, transit point, region, district, territory, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever: Provided, however, That this paragraph shall not be construed to apply to discrimination, prejudice, or disadvantage to the traffic of any other carrier of whatever description.' 49 U.S.C.A. § 3(1).
The reports are full of statements to the effect that this section is to prevent discrimination
and in the Shreveport Rate Case (234 U.S. at page 356, 34 S. Ct. at page 838), the language was very broad. We cannot see how the action of the New Jersey Board of Public Utility Commissioners, affirmed by that state's courts, in refusing to allow the railroad to give up the train in question discriminates against anyone. As the Interstate Commerce Commission said, 'The interstate passengers and localities served by the train would seem to be benefitted by the board's order.' 299 I.C.C. at page 49. The plaintiff suggests an injury or prejudice to the interstate riders of Train 613 because those riders are not assured of continuous service, since the railroad may abandon an interstate train, while the intrastate riders are assured of continuous service under the New Jersey Board's order. We do not think this fear of what probably will never come to pass is sufficient to describe the type of discrimination that needs court action to stop it.
As for the rest, we do not see any discrimination resulting from the New Jersey court action. It may create a tough situation for the receiver of a financially embarrassed railroad but the appeal from New Jersey Supreme Court's action was dismissed because a federal question was thought to be lacking. That disposes of any legal or constitutional federal question resulting from the train's continued operation.
We have been over the plaintiff's argument many, many times. The conclusion is that we do not find in the New Jersey order anything which constitutes, or can constitute, discrimination against interstate commerce or the persons engaged therein.
The petition will be dismissed.