215 U.S. Argument for Appellant. to deal with preferential and discriminatory regulations of carriers as well as with rates. It is not beyond the power of the Interstate Commerce Commission to require a railroad in distributing its coal cars to take into account its own fuel cars in order not to create a preference of the mine to which such cars are assigned over other mines. Where an order of the Interstate Commerce Commission is sustained by the court below in part and only the Commission appeals, the conclusions of the court below as to those portions of the order sustained are not open to inquiry in this court. Even if commerce in regard to the purchase of coal at a mine on a railroad line by the railroad company which supplies its own cars may end there, the power to use the equipment of the railroad to move the coal is subject to the control of the Interstate Commerce Commission in order to prevent discrimination against, or undue preference of, other miners and shippers of coal. THE facts, which involve the question of whether a duty rested upon the railroad company to obey an order made by the Interstate Commerce Commission in regard to the distribution of coal cars, are stated in the opinion. Mr. Wade H. Ellis, Assistant to the Attorney General, and Mr. Luther M. Walter, Special Assistant to the Attorney General, with whom Mr. L. A. Shaver and Mr. H. B. Arnold were on the brief, for appellant: Under §§ 12, 13, 14 of the Hepburn Act, June 29, 1906, 34 Stat. 584, the Interstate Commerce Commission has authority to examine into and decide whether or not a railroad company is violating any of the provisions of the Interstate Commerce Act with respect to furnishing cars, and to direct it to cease and desist from such violation and to prescribe just, fair and reasonable regulations with respect to such transportation. The Commission clearly had power to deal with unjust, preferential and discriminatory regulations and practices of carriers under $15 of the act as it stood prior to the Hepburn Act. Whether or not it still exists under § 15 of the amended act must be ascertained by examining the whole act as it now Argument for Appellant. 215 U.S. stands, with a view to gathering the general intent and purpose of Congress, and then by examining the various provisions by which the general intent and purpose are sought to be made effective. The general intent and spirit of the act, taken with the words themselves, show that the commission has the power. This court has held that the act should be interpreted reasonably to accomplish its great purpose, to wit, to secure just and reasonable charges, to prohibit unjust discriminations and to prevent undue and unreasonable preferences. New Haven R. R. Co. v. Interstate Commerce Commission, 200 U. S. 261. The phrase in § 15 should not be construed to mean only those practices which in some way increase or diminish the amount of freight charges, or directly affect rates. An order of the commission issued in pursuance of the authority conferred upon the commission by the courts is a legislative act; it becomes the law, and cannot be set aside by the courts unless it clearly violates constitutional rights. Knoxville v. Water Co., 212 U. S. 1, 8, 18; Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 226, 227; Willcox v. Consolidated Gas Co., 212 U. S. 19, 41; Noyes on American Railroad Rates, 203; Steenerson v. Great Northern Ry. Co., 69 Minnesota, 353. The order of the commission must stand unless it appears, either first that the commission failed to follow the procedure required by law, or second, that upon the face of the proceedings, enforcement of the order would amount to a confiscation of property. The so-called court review provided in the Hepburn Act was not designed to, and does not, give the Federal courts any larger or different powers to protect the railroads from an invasion of constitutional rights than such courts would have possessed without any declaration on the subject. The court review amendment merely confirms the jurisdiction of the court, specifically defines the venue and authorizes suits against the commission as an agency of the Government. The history of this legislation supports no other conclusion. A suit to set aside an order of the commission is not a mere 215 U.S. Argument for Appellant. appeal from an inferior to a superior tribunal. There is no authority for the substitution of the court's judgment for the commission's judgment. The only thing before the court, if the commission proceeded regularly under the statute, is the result reached. The courts cannot inquire into the steps by which the result was reached, nor consider the methods. They have the same and no greater power to review the reasons which control the commission as they would those of Congress. When there is a shortage of cars, not enough for all, then the right of the shipper to the exclusive use of his private cars, and in addition to a full share of the system cars of the railroad company, must yield to the requirements of the law that all shippers shall have an equal right to have their goods transported. The shipper furnishing private cars is not penalized for using them by a denial to him of a full share in addition of the system cars in times of car shortage, because at such times he is not entitled to a full share of system cars if to give him such full share prevents that equality in the transportation facilities of the railroad which the act to regulate commerce requires. The cars claimed by the railroad to be private or devoted to a special use are in fact merely rented by the railroad company, and ought to be a part of its available equipment. There is no difference in principle between a railroad company's own fuel cars and foreign railway fuel cars or private cars in so far as the duty exists to count all such cars against the distributive share of the mines receiving them. Logan Coal Co. v. Pennsylvania Railroad Company, 154 Fed. Rep. 497; United States v. B. & O. Railroad Co., 165 Fed. Rep. 126; Majestic Coal Co. v. Illinois Central Railroad Co., 162 Fed. Rep. 810. The Ohio Railroad Commission and other state railroad commissions have held that it is the duty of the railroads to count their private fuel cars in apportioning the distributive shares of the available equipment to the mines. Railroad Argument for Receivers of the Illinois Collieries Co. 215 U.S. Commission of Ohio v. Hocking Valley Ry. Co., 12 I. C. C. Rep. 398; Traer, Receiver, v. Chicago & Alton R. R. Co., 13 I. C. C. Rep. 451; R. & R. Coal Co. v. Balt. & Ohio, 14 I. C. C. Rep. 86. Mr. Eldon J. Cassoday, and Mr. Rush C. Butler for Receivers of the Illinois Collieries Company submitted a brief by leave of the court: The method of distribution of cars to be used in interstate commerce is within the provisions of the act to regulate commerce and within the jurisdiction of the Interstate Commerce Commission. Sections 1, 3, Act to Regulate Commerce; United States ex rel. Pitcairn Coal Co. v. B. & O. R. R. Co., 154 Fed. Rep. 108; B. & O. R. R. Co. v. United States ex rel. Pitcairn Coal Co., 165 Fed. Rep. 113; S. C., 91 C. C. A., 147; Logan Coal Co. v. Penn. R. Co., 154 Fed. Rep. 497; United States ex rel. v. N. & W. Ry. Co., 143 Fed. Rep. 266; S. C., 74 C. C. A. 404; Kingwood Coal Co. v. W. Va. N. Ry. Co., 125 Fed. Rep. 252; W. Va. N. R. Co. v. Kingwood Coal Co., 134 Fed. Rep. 198, 204; S. C., 67 C. C. A. 220; United States v. Oregon R. & N. Co., 159 Fed. Rep. 975; Majestic Coal & Coke Co. v. Ill. Cent. R. R. Co., 162 Fed. Rep. 810; Ohio R. R. Commission v. Hocking Valley Ry. Co., 12 I. C. C. Rep. 398, 404; Traer, Receiver, v. C. & A. R. R. Co., 13 I. C. C. Rep. 451; Royal Coal & Coke Co. v. Southern Ry. Co., 13 I. C. C. Rep. 440; Rail & River Coal Co. v. B. & O. R. R. Co., 14 I. C. C. Rep. 86. The practice of the appellees, in failing and refusing to charge against the percentage or distributive number of cars to which certain mines would be entitled, cars sent to said mines to be loaded with appellees' own fuel supply, is an unjust discrimination against the other coal mines on said lines of railroad and is a violation of the provisions of the act to regulate commerce. Section 3, Interstate Commerce Act. The railroad company and a shipper do not stand on a footing of equality. N. Y. C. R. R. Co. v. Lockwood, 17 Wall. 215 U. S. Argument for Receivers of the Illinois Collieries Co. The right to use such cars is a matter separate and distinct from and not in any way dependent upon or affected by the counting or failure to count such cars. Traer, Receiver, v. C. & A. R. R. Co., 13 I. C. C. Rep. 457. The appellees use their practice of not counting such cars as a scheme or device to give an advantage to the mine owner from whom they buy their fuel, so as to influence and govern the price of such fuel. Report of Interstate Comm. Comm. to Congress, January 25, 1907. The railroad companies cannot justify their practice of not counting such cars on the ground that, without it, they would be compelled to pay a higher price for their coal. New Haven R. R. Co. v. Interstate Comm. Comm., 200 U. S. 361, 399; Turnpike Road Co. v. Sanford, 164 U. S. 578, 596; Union Pac. R. Co. v. Goodridge, 149 U. S. 680, Smyth v. Ames, 169 U. S. 466. The rule or practice of counting or not counting cars has been before the court and the commission in a number of cases. Cases supra, and Coffman v. N. & W. R. Co., 109 Fed. Rep. 831. The contract and non-contract mines are similarly situated. Logan Coal Co. v. Pennsylvania R. Co., 154 Fed. Rep. 497; Majestic Coal & Coke Co. v. Illinois Central R. R. Co., 162 Fed. Rep. 810. Such practice is only operative during times of car shortage and by it the railroad company is enabled by reason of its failure to furnish adequate equipment to obtain a reduction in prices and to give to its contract mines an undue advantage over non-contract mines. Such cars even when in use by the railroad company in transporting its own fuel are still a part of the equipment of the road and within the terms of the Interstate Commerce Act. The cars are engaged in a public use for the benefit of the public and not alone of the railroad company. The hauling of the railroad's own fuel coal constitutes a "carriage." Section 1, Interstate Commerce Act. Such cars are used to obtain coal with which to operate engines and trains which are engaged in interstate commerce |