Interstate Commerce Commission v. Delaware, L. & W. R. 64 F. 723

WALLACE, Circuit Judge.

Upon a certificate of the interstate commerce commission, stating, in substance, that, in making the order which the court is asked in this cause to enforce, the commission did not design to make one so broad as its terms import, the complainant has moved for a rehearing of the cause. The court cannot substitute, for an order actually made, one such as the commission might or should hare made, or such as the commission inteuded to, but failed to, make. This court has no revisory power over the orders of the commission. Its function in a proceeding like Oils is merely to inquire whether the respondents, the common earners, have refused or neglected to perform any lawful order or requirement o£ the commission. It cannot undertake to decide whether the respondents have violated one which the commission might have lawfully made. It is not a violent presumption that if the order had been, in terms, one such as the commission intended to make, the respondents would have contested its propriety, and refused to obey it But such an issue is not here. As framed, the respondents, in my judgment, were justified in refusing to obey it. It is much to be regretted that the real controversy between the Minnetto Shade-Cloth Company and ¡he respondents is not presented by the application to enforce the order made by the commission, and that the parties have been subjected to the delay and expense of trying an extraneous issue; but the misfortune is not remediable by a rehearing, and a rehearing is therefore denied.