225 U. S. Argument for the Interstate Commerce Commission.

The requirements in § 210, Judicial Code, that a restraining order must contain a statement of facts as to irreparable damage resulting from the order of the Commission relate only to the first class of cases. This court will not apply to the construction of the equity powers of a statutory court, general principles of equity, if the effect would be to destroy the law creating the court by expunging therefrom the very powers which Congress intended to grant; and so held that the power given by § 210, Judicial Code, to the Commerce Court to issue an injunction pendente lite was to enable that court to have proper time for consideration, and the right of appeal to this court was given as a safeguard against a possible abuse of the power to issue the order; and the order will not be reversed in the absence of such abuse. Where Congress creates a special tribunal for a special class of cases with an appeal to this court it is the duty of this court to give effect to that purpose and uphold the lawful authority of the court so created and to also correct abuse of power when it appears.

In this case, held, that there was no abuse of power in issuing the order for an injunction pendente lite and the order is affirmed and the case remanded so that there may be opportunity to dispose of it in the forum selected by Congress for that purpose.

THE facts, which involve the jurisdiction of the Commerce Court and its power to issue restraining orders. and injunctions, are stated in the opinion.

The Solicitor General for the United States:

A carrier cannot make the ownership of commodities the test of its duty to carry them or the criterion of the rates for carriage. Interstate Com. Comm. v. Delaware, L. & W. R. R. Co., 220 U. S. 235. For the same reason the carrier may not inquire as to the place of origin and base its rates upon that.

A carrier may not make rules which discriminate between shippers standing in substantially the same relation to it. Union Pacific R. R. Co. v. Updike Grain Co., 222 U. S. 215.

Mr. P. J. Farrell for the Interstate Commerce Commission:

A carrier may establish a separate charge for terminal

Argument for the Interstate Commerce Commission. 225 U. S. services which are in addition to and entirely separate and distinct from the transportation; and where such separate charge is established it must be considered as applicable only to the services covered thereby as shown. by the tariffs of the carrier published and filed according to law. Interstate Com. Comm. v. Stickney, 215 U. S. 98. And see Southern Ry. Co. v. St. Louis Hay & Grain Co., 214 U. S. 297.

One provision of the Interstate Commerce Act may not be seized upon and used regardless of other provisions of the same act to justify inequalities in the treatment accorded by carriers to shippers. The act was enacted for the purpose of preventing such inequalities. Interstate Com. Comm. v. Balto. & Ohio R. R. Co., 145 U. S. 263; Union Pacific Ry. Co. v. Goodridge, 149 U. S. 680; Cinn., N. O. & T. P. Ry. Co. v. Interstate Com. Comm., 162 U. S. 184; Texas Pacific Ry. Co. v. Interstate Com. Comm., 163 U. S. 197; Interstate Com. Comm. v. Cinn., N. O. & T. P. Ry. Co., 167 U. S. 479; Union Pacific R. R. Co. v. Updike Grain Co., 222 U. S. 215; Wight v. United States, 167 U. S. 512; Interstate Com. Comm. v. Alabama Midland Ry. Co., 168 U. S. 144; East Tennessee, V. & G. Ry. Co. v. Interstate Com. Comm., 181 U. S. 1; New York, N. H. & H. R. R. Co. v. Interstate Com. Comm., 200 U. S. 361; Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Interstate Com. Comm. v. Chicago G. W. Ry. Co., 209 U. S. 108; Interstate Com. Comm. v. Illinois Cent. R. R. Co., 215 U. S. 452; Interstate Com. Comm. v. Delaware, L. & W. R. R. Co., 220 U. S. 235.

The Commerce Court erred in substituting its own judgment for that of the Commission concerning the character of the discrimination which constituted the basis of the Commission's order. Interstate Com. Comm. v. Illinois Cent. R. R. Co., supra; Baltimore & Ohio R. R. Co. v. United States ex rel. Pitcairn, 215 U. S. 481; Southern Pacific Co. v. Interstate Com. Comm., 219 U. S. 433; Inter

225 U.S.

Argument for Appellees.

state Com. Comm. v. Delaware, L. & W. R. R. Co., 220 U. S. 235.

Mr. Ernest A. Bigelow for the Federal Sugar Refining Company:

The Commission's findings of fact, supported as they are by the evidence, will not be reviewed by this court, Interstate Com. Comm. v. Delaware, L. & W. R. R. Co., 220 U. S. 235; and its conclusions of law were correctly drawn. See Coe v. Erroll, 116 U. S. 517; L. & L. F. Ins. Co. v. R., W. & O. R. R., 144 N. Y. 200; Penn. Ry. v. Int. Coal Mining Co., 173 Fed. Rep. 1.

The Act to Regulate Commerce was intended to afford an effective means for redressing the wrongs resulting from unjust discrimination and undue preference, and the incidental and wholly subordinate provisions of § 15 cannot be allowed to frustrate the fundamental purpose of the act. Interstate Com. Comm. v. Illinois Cent. Ry. Co., 215 U. S. 477.

As to the so-called admission made by counsel for the Federal Sugar Refining Company. Even if made with the full force and effect attributed to it, it is immaterial, as the Commission has the power in the public interests to consider the whole subject, disembarrassed by any supposed admissions, even if contained in the complaint. C. H. & D. Ry. v. Interstate Com. Comm., 206 U. S. 142.

On this appeal the court may properly consider and decide the whole cause on the merits. Smith v. Vulcan Iron Works, 165 U. S. 518; Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, citing Knoxville v. Africa, 77 Fed. Rep. 501; Green v. Mills, 69 Fed. Rep. 852.

Mr. George F. Brownell, with whom Mr. Herbert A. Taylor was on the brief, for railroad companies, appellees: The service performed by the Federal Sugar Refining Company through the medium of the Ben Franklin Trans

Argument for Appellees.

225 U.S.

portation Company is not a transportation service of the railroad companies, but is wholly accessorial and cannot lawfully be paid for by these appellees. In re Allowances for Transfer of Sugar, 14 I. C. C. 619; Wight v. United States, 167 U. S. 512; Chicago & Alton Ry. Co. v. United States, 156 Fed. Rep. 558; General Electric Co. v. N. Y. C. & H. R. R. Co., 14 I. C. C. 237; Solvay Process Co. v. D., L. & W. R. R. Co., 14 I. C. C. 246.

The employment of the Jay Street Terminal to act as the public freight station of these appellees in receiving and delivering freight and to perform floatage and lighterage service was perfectly lawful. Both the Commission and the courts have held that railroads may secure and maintain freight depots by contract with shippers and that such depots thereby become legally and to all intents and purposes the freight depots of the railroads. Central Stock Yards Co. v. L. & N. Ry. Co., 192 U. S. 568; Railroad Commission v. L. & N. Ry. Co., 10 I. C. C. 173; Cattle Raisers' Assn. v. C., B. & Q. R. R. Co., 11 I. C. C. 277.

The entering into a contract with one shipper to furnish station facilities does not result in a violation of the provisions of the Act to Regulate Commerce forbidding undue preferences and advantages, even if similar contracts are not made with all competing shippers in the same locality. Central Stock Yards Co. v. L. & N. Ry. Co., 118 Fed. Rep. 113, 117; aff'd, 192 U. S. 568; Covington Stock Yards Co. v. Keith, 139 U. S. 128, 136; Butchers' & Drovers' Stock Yards Co. v. L. & N. Ry. Co., 67 Fed. Rep. 35; United States v. Delaware, L. & W. R. Co., 40 Fed. Rep. 101; Consolidated Forwarding Co. v. Southern P. Co., 9 I. C. C. 182, 206; Worcester Co. v. Pennsylvania R. R. Co., 3 I. C. C. 577, 584; Re Transportation of Fruit, 10 I. C. C. 360.

An unjust discrimination or an undue preference is not created by the action of a railroad company in employing a shipper to perform a part of the transportation service, when the shipper is paid a compensation that is reasonable

225 U.S.

Argument for Intervenors.

for the performance of the service, simply because other shippers who are not in position to perform the same transportation service may be subjected to disadvantages. Peavey & Co. v. Union Pacific R. Co., 176 Fed. Rep. 409; aff'd, 222 U. S. 42.

Mr. William N. Dykman for Jay Street Terminal and Arbuckle Brothers, intervenors:

This court reviews the findings of the Interstate Commerce Commission upon appeal from an order granting an injunction suspending the order of the Commission. Interstate Com. Comm. v. Delaware, L. & W. R. Co., 216 U. S. 531; Interstate Com. Comm. v. Northern Pacific R. Co., 216 U. S. 538. See, also, Missouri, K. & T. Ry. Co. v. Interstate Com. Comm., 164 Fed. Rep. 645; Kentucky Bridge Co. v. Louisville & N. Ry. Co., 37 Fed. Rep. 567. On an appeal from an order granting an injunction pendente lite the appellant must show that no cause of action is stated in the bill. Hudson R. T. Co. v. W. T. &

R. R. Co., 121 N. Y. 397.

No commission, nor any court, can treat that as a public or private wrong which the Congress has authorized. Hammersmith &c. R. Co. v. Brand, 4 H. L. Cas. 171; Bellinger v. N. Y. C. R. Co., 23 N. Y. 42.

In New York, at least, there is no doubt of the validity of a contract by which a carrier limits its common-law liability. Bermel v. N. Y., N. H. & H. R. Co., 6 App. Div. 389; aff'd, 172 N. Y. 629; Zimmer v. N. Y. C. & H. R. R. Co., 137 N. Y. 460; Wheeler v. Oceanica S. N. Co., 125 N. Y. 155.

When the terminal receives sugar for shipment and issues a bill of lading for and in the name of the railroad company, title to the merchandise changes from the consignor to the consignee, Mee v. McNider, 109 N. Y. 500; Wilcox Silver Plate Co. v. Green, 72 N. Y. 17; Waldron v. Romaine, 22 N. Y. 368; Gilbert v. R. R. Co., 4 Hun, 317; Williston on