The conclusions of the Interstate Commerce Commission on
questions of fact are not reviewable by the courts.
Balt. &
Ohio R. Co. v. Pitcairn, 215 U. S. 481.
A carrier cannot make mere ownership of goods tendered for
transportation the test of the duty to carry, nor may a carrier
discriminate in fixing charges for carriage upon such
ownership.
Under the Act to Regulate Commerce, a carrier cannot refuse to
transport carload lots at carload rates because the goods do not
actually belong to one shipper or are shipped by a forwarding
agency for account of others.
The provisions of § 2 of the Act to Regulate Commerce were
substantially taken from § 90, the equality clause of the English
Railway Clauses Consolidated Act of 1845, and had been construed by
the courts prior to the enactment of § 2 as forbidding a higher
charge to forwarding agents than to others.
The right of the carrier to fix rates does not give it the right
to discriminate as to those who can avail of them.
The conclusion by the Interstate Commerce Commission that the
enforcement of a rule by a carrier creates a discrimination is one
of fact and not open to review by the courts.
In the absence of statutory authority to exclude forwarding
agents from availing of published rates, the courts cannot overrule
a conclusion of the Interstate Commerce Commission that such
exclusion would create a preference, and this although the business
of forwarding agents be competitive with the carrier itself.
The facts are stated in the opinion.
Page 220 U. S. 240
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
Was the court below wrong in permanently enjoining the
enforcement of an order of the Interstate Commerce Commission
directed to the railroad companies who are appellees is the subject
which this cause requires us to consider. As a preliminary to
stating the proceedings before the Commission and the court, we
refer to practices under the Act to Regulate Commerce which gave
rise to and developed the controversy with which the order of the
Commission was concerned. To do this will not only abbreviate the
statement of the case, but will serve to broadly define the one
question essential to be decided, and point to the principles
applicable to its correct solution.
Before the Act to Regulate Commerce, it was usual, first, to
give reduced rates to persons who shipped quantities of
merchandise; and, second, to charge a proportionately less rate for
a carload than was asked for a shipment in less than a carload.
After the act, lower rates to wholesale shippers were abandoned, it
having been declared that to continue them was contrary to the act.
Providence Coal Case, 1 I.C.C. 107, 1 I.C.C. 363. The giving,
however, a lesser proportional rate for a carload than for a less
than carload continued, the Commission having at an early date
announced that such a practice was not prohibited. Thurber v. New
York C. & H. R. Co., 3 I.C.C. 473, 2 I.C.C. 742. Without
detailing the theory upon which this conception was based, it
suffices broadly to say that it embodied the assumption that a
carload was the unit of shipment, and rested upon the difference
which existed between the cost of service in the case of a carload
shipment
Page 220 U. S. 241
by one consignor to one consignee, and that occasioned by a
shipment in one car of many packages by various consignors to
various consignees. Leaving aside possible qualifications arising
from exceptional conditions, it is true to say that the Commission,
however, recognized that the fixing of a lesser rate for a carload
was not imperative, but was merely optional. Conformably to these
administrative conception, it came universally to pass that,
wherever a lesser charge for a carload than for a less-than-carload
shipment was established, such charge was only applicable to
shipments made at one time by one consignor of merchandise
consigned to one consignee at a single destination. While there was
this uniformity, there was, however, much divergence between
carriers as to the character of traffic which was given the benefit
of the lesser rate for carload shipments and the circumstances
under which, when such rate was established, it would be applied.
This becomes at once manifest when the rules are considered which
prevail in the three geographical divisions into which the United
States came to be divided by carriers in order that a similar
classification might, in a general sense, obtain under like
conditions. The divisions in question are the Southern, the
Western, and the Official Classification territory, the first
including practically all points east of the Mississippi River and
south of the Ohio and Potomac Rivers, the second embracing that
part of the country west of the Mississippi River and the Great
Lakes and an imaginary line extending from St. Louis to Chicago,
and the last all of the United States not covered by the two other
divisions. In the Southern and Western Classification territory,
the rules established by carriers allowed the lesser rate for a
carload shipment only on a small percentage of the classified
articles, and in both these territories restrictions were imposed
prohibiting the intermingling of differently classified articles in
one car for the purpose of
Page 220 U. S. 242
obtaining the carload rate, even though the articles, if they
had been shipped separately in carload quantities, might have been
entitled to the carload rate. The extent of these limitations upon
the right to enjoy the lesser rate for the carload in the
territories in question is shown by a statement made by the then
chairman of the Interstate Commerce Commission in the dissenting
opinion delivered by him in Export Shipping Co. v. Wabash R. Co.,
14 I.C.C. 437, 443,
viz.:
"A recent careful and authoritative examination of the several
classifications shows that, in the Southern Classification, there
are 3,503 less-than-carload and only 773 carload ratings, the
carload ratings being 22.1 percent of the less-than-carload; in the
Western Classification, there are 5,729 less-than-carload and only
1,690 carload ratings, the carload ratings being 29.8 percent of
the less-than-carload."
In the same opinion it is also stated that in both the Western
and Southern Classification territory, the small percentage
accorded a carload rate was confined to goods embraced within lower
grades of classification, taking therefor the lowest rates. In the
Official Classification territory, however, a widely different
allowance of carload ratings prevailed, since, in that territory,
the carload rating was permitted on a very large number of
articles. In that territory, as likewise remarked by Chairman
Knapp, "there are 5,852 less-than-carload ratings and 4,235 carload
ratings, the carload ratings being 72.4 percent of the
less-than-carload" against, as we have said, 29.8 percent and 22.1
percent in the other territories. This large difference was besides
in effect made much greater not only by the higher grades of
traffic to which the carload rate was extended, but also because of
the enlarged right to ship in one car articles embraced in various
classes of traffic to which the carload rating was extended.
There can be no doubt that the privilege of shipping at
Page 220 U. S. 243
a lesser rate for the carload shipment than was asked for a
less-than-carload shipment came to be interwoven with and
inseparable from the movement of commerce through the channels of
railroad transportation. And the benefits of the lesser rate came
to be obtained not alone by an owner of all the goods shipped in a
carload, but by combinations of owners, by agreements between them
concerning particular and isolated shipments, by the organization
of associations of shippers having for their object the creating of
agencies to receive merchandise belonging to the members of the
association, and to aggregate and ship them in carload lots in the
name of one consignor to a single consignee at one destination by
the use of commission houses, storage and other companies, etc. It
is also undoubted that, in consequence of the facility of shipping
at a lesser rate for a carload than for a less-than-carload
shipment, there developed a class of persons known as forwarding
agents, who embarked in the business of obtaining a carload rate
for various owners of merchandise by aggregating their shipments,
such agents relying for their compensation upon what they could
make from the difference between the carload and less-than-carload
rates. The business so carried on by these agents was thus
described by Mr. Commissioner Knapp in his dissenting opinion, to
which we have previously referred (14 I.C.C. 440):
"The business of the forwarding agent, insofar as is material to
the question involved, is to collect less-than-carload shipments
from different consignors, combine such shipments into carloads,
and ship the same in the name of the forwarding agent, or of the
owner of one of the less-than-carload shipments, to one consignee,
who may be the forwarding agent himself, another forwarding agent
at the point of destination with whom he has business relations, or
the owner of part of the property transported. The consignee of the
shipment, whoever he
Page 220 U. S. 244
may be, receives the carload and distributes its contents to the
parties for whom they are intended. The forwarding agent finds his
compensation and profit in the difference between the carload and
less-than-carload rates."
"The saving effected by securing application of the carload,
rather than the less-than-carload, rates may be divided between the
forwarding agent and his customer in any agreed proportion. To the
extent that the customer secures the carriage of his property at a
lower rate than the less-than-carload rate which would otherwise be
applied, he saves money, and the division of the difference between
the carload and the less-than-carload rates is a matter of private
bargain between him and the agent."
The extent to which the right to avail of the carload rating in
the various modes above stated had come to be a part of the
business of the country is described in the opinion of the
Commission in California Commercial Association v. Wells, Fargo
& Co., 14 I.C.C. 422, delivered on the same day that its
opinion concerning this controversy was announced. The Commission
said (p. 433):
"Few practices have become more firmly established in the
transportation world than that of combining small quantities of
freight of various owners and shipping at the relatively lower
rates applicable to large consignments, and under this practice has
developed an immense volume of traffic which otherwise could never
have been brought into being. It is not an exaggeration to say that
the enforcement of such a rule by the carriers of the United States
would bring disaster upon thousands of the smaller industries, and
more surely establish the dominance of the greater industrial and
commercial institutions."
And the alertness with which those engaged in commerce utilized
every means afforded of shipping at lower cost is shown in the
following testament made by Mr.
Page 220 U. S. 245
Commissioner Knapp in his opinion to which we have referred (14
I.C.C. 441):
"The individual shippers are not necessarily located at the same
point, nor are the individual consignees. For instance, if a
reduction in rates could be effected, a furniture dealer at Grand
Rapids, Michigan, having a shipment for a point in Maine, and a
furniture dealer in Rockford, Illinois, having a shipment for a
point in Massachusetts, might forward their separate shipments at
less-than-carload rates to Chicago; there, the two shipments would
be consolidated and forwarded at carload rates to Boston, and
thence shipped again at less-than-carload rates from Boston to
their respective destinations."
It is obviously true that the extent to which the practice
prevailed of combining shipments to avail of the benefit of the
carload rate differed largely in the various territories, dependent
upon the liberality of the tariffs on the subject. That is to say,
in Official Classification territory, where the right to carload
rates was extended to many items, and the right to combine
different articles in one shipment was more liberal than in the
other territories, the business of combining diverse shipments into
carload lots assumed much greater magnitude than in the other
territories. However, about 1899, in Official Classification
territory, rules were adopted restricting the liberal right to
obtain carload rates and the extended power to combine like or
different articles in a car load, the restrictions probably having
been brought about by the development of the business of forwarding
agents. The Buckeye Buggy Company v. C., C.C. & St.L. Ry. Co.,
9 I.C.C. 620. The modifications in question, which took the form of
notes to Rule 5-B and to Rule 15-E of the Official Classifications,
which regulated carload shipments, in effect forbade the
combination of goods belonging to several owners for the purpose of
a carload shipment, and forbade therefore not only impliedly,
Page 220 U. S. 246
but expressly, the combination of goods for the purpose of
carload rating by means of forwarding agents. The notes were as
follows:
"Rule 5-B. In order to entitle a shipment to the carload rate,
the quantity of freight requisite under the rules to secure such
carload rate must be delivered at one forwarding station, in one
working day, by one consignor, consigned to one consignee and
destination, except that, when freight is loaded in cars by
consignor, it will be subject to the car service rules and charges
of the forwarding railroad. (See Note.)"
"
* * * *"
"Note.Rule 5-B will apply only when the consignor or consignee
is the actual owner of the property."
"Rule 15-E. Shipments of property combined into packages by
forwarding agents claiming to act as consignors will only be
accepted when the name of individual consignors and final
consignees, as well as the character and contents of each package,
are declared to the forwarding railroad agent, and such property
will be waybilled as separate shipments, and freight charged
accordingly. (See note.)"
"Note. The term 'forwarding agents,' referred to in this rule,
shall be construed to mean agents of actual consignors of the
property, or any party interested in the combination of I.C.L.
shipments of articles from several consignors at point of
origin."
While the restrictions in question were adopted in 1899, from
that time to about 1907, when the shipments which provoked this
controversy were made, it would seem that there was no general
effort to enforce the restrictions, although sporadic attempts to
do so were undoubtedly made. The business, therefore, of
aggregating the shipments of various owners for the purpose of
obtaining the benefit of the carload rate by all the means and
devices which we have hitherto described continued
Page 220 U. S. 247
substantially unchanged. The Buckeye Buggy Co. case,
supra. See also statement in the dissenting
opinion of Mr. Commissioner Knapp in the present case. 14 I.C.C. p.
442.
In the spring of 1907, the Export Shipping Company, a New Jersey
corporation doing business in Chicago and in New York, shipped from
Chicago to New York, by the several railroads who are appellees,
three cars of freight consisting of merchandise belonging to
various owners which had been aggregated by the export company for
the purpose of shipment, and thus becoming entitled to the carload
rate. The shipments conformed in all respects to the regulations of
the companies except to the extent that they came under the
operation of the restrictions above referred to. On the arrival of
each car in New York, the carrier, instead of collecting the
carload rate, exacted the less-than-carload rate because of the
restrictions in question. In August, 1907, the export company
petitioned the Interstate Commerce Commission to award it
reparation against the three carriers to the extent of the
difference between the less-than-carload rates which had been
exacted and the sums which would have been paid if the carload rate
had been demanded. The right to the relief was based upon the
assertion that an unlawful discrimination had been occasioned. The
railroad companies having answered, the three complaints were
consolidated and heard at the same time. When the hearing had
somewhat proceeded, it was agreed that the petitions for reparation
should be considered as having been amended so as to challenge the
reasonableness of the restrictions referred to. After the case had
been submitted to the Commission, the Rockford Manufacturers' &
Shippers' Association of Rockford, Illinois, the Manufacturers'
Association of Jamestown, and the Judson Freight Forwarding Company
were allowed to intervene, and the case was reopened and further
testimony was received
Page 220 U. S. 248
in support of and against the contention that the assailed rules
were in conflict with the second section of the Act to Regulate
Commerce.
The Commission, at the time the complaints were pending, had
also before it the complaint of the California Commercial
Association against Wells, Fargo & Company involving an
analogous question. On June 22, 1908, the report, opinion, and
order of the Commission in both cases were filed. 14 I.C.C. pp.
422, 437.
The general subject under consideration in this case was more
elaborately discussed in the opinion in the California case, and in
the opinion in this case, reference was made to the reasoning
expounded in that case. The restrictions created by the rules to
which we have referred were declared void, and reparation was
awarded. The carrier was commanded on or before a date named to
desist from attempting to enforce the restrictions. Two members of
the Commission dissented. Briefly stated, the Commission held (a)
that a carrier could not properly look beyond goods tendered to it
for transportation "to the ownership of the shipment," as the basis
for determining the application of its established rates, because
doing so would be a violation of the second section of the Act to
Regulate Commerce; (b) that the fact that the carriers in Official
Classification territory had voluntarily established both liberal
carload rates and opportunities for combining various articles for
the purpose of obtaining the carload rate gave the carriers no
right to discriminate by depriving one person or class of persons
of the right thus granted; (c) that a forwarding agent was equally
entitled with others to the benefit of a carload rate when
published and established, and that to deprive a forwarding agent
of such rights would be a prohibited discrimination; (d) that, in
any view, the restrictions formulated by the assailed rules were
void because repugnant to the Act to Regulate Commerce, since their
enforcement as a matter of fact necessarily
Page 220 U. S. 249
created preferences and engendered discriminations which the act
forbade; (e) that this, among other reasons, was the case because
the enforcement of the assailed restrictions would not only create
preferences in favor of one set of persons against another, but
would create discriminations between places, and would be
revolutionary in its operation upon interstate traffic; (f) that,
irrespective of the abstract right of a carrier to make the
ownership of goods offered for shipment a basis for applying its
published rates, owing to the practical impossibility of a
carrier's being able to adequately enforce such a rule by
determining who was the owner of the goods offered, such a rule as
a matter of fact would, in and of itself, be an unlawful preference
and discrimination forbidden by the act, and (g) that the same
principle would control as to the attempt to establish a rule
applicable alone to forwarding agents, because of the practical
impossibility of distinguishing one class of agents from another.
The reasons which led two members of the Commission to dissent were
expounded in a careful opinion, stating views which were in
substance the direct antithesis of those expressed by the
Commission. For example, the dissenting opinion maintained first
that to deprive a carrier of the power to exclude a forwarding
agent from the benefit of the carload rate would bring about
discrimination against places and preferences in favor of persons
prohibited by the act; second, that, as the right to the carload
rate was the offspring of the voluntary act of the carrier, the
right to restrict the privilege thus accorded to particular classes
or conditions necessarily obtained; and third that, in any event, a
forwarding agent who was but a dealer in railroad transportation,
and therefore in a measure a competitor in business of a railroad
carrier, was not within the prohibitions of the second section of
the Act to Regulate Commerce.
The railroad companies did not comply with the order,
Page 220 U. S. 250
and before the date fixed for compliance commenced the present
suit by filing their joint bill to enjoin the enforcement of the
order and have it declared void. It suffices to say in substance
that, as a basis for the right to relief, the bill challenged the
propositions upon which the Commission had based its order, and
affirmatively propounded the grounds which led two members of the
Commission to dissent from the conclusions of that body. It also
suffices to say that the answer of the Commission traversed the
affirmative grounds for relief asserted in the bill and averred the
correctness of the order by it made upon the grounds stated in the
opinion and report of that body. The order of the Commission and
its report and opinion in this particular case, as also its opinion
in the California Commercial Association case, which, as we have
said, was decided on the same day, were made part of the answer,
and the opinion in the Buckeye Buggy Company case was also
attached.
A motion for a preliminary injunction was heard before the
circuit court, composed of three judges, upon the pleadings, the
affidavits of two officials of one of the complainant railroad
companies, and the evidence taken before the Commission. The motion
was granted, and the enforcement of the order of the Commission was
restrained until final hearing. The circuit court rendered no
opinion other than the statement that a majority of the court were
in accord with the reasoning and conclusions expressed in the
dissenting opinion of the chairman of the Commission, and that they
did not think it necessary to add anything to his exhaustive
discussion of the questions presented. Thereafter the American
Forwarding Company, Transcontinental Freight Company, and the
Rockford Manufacturers' & Shippers' Association were made
parties defendant, and those concerns filed an answer which adopted
the averments contained in the answer of the Commission.
Replications were duly filed. A decree
Page 220 U. S. 251
pro confesso was entered against the Export Shipping
Company and its trustee in bankruptcy, the company having become
bankrupt.
Adopting a suggestion made by the court in disposing of the
motion for a preliminary injunction, it was stipulated between the
solicitors for the various parties that the case should be treated
as having been submitted for final hearing. Thereupon a final
decree was entered by which the order of the Commission was set
aside and declared to be void. This appeal was then taken.
As shown by the opinion of the Commission and that of the two
members who dissented, there were many and wide differences in the
views expressed. On their face, however, when ultimately reduced,
they will be found, insofar as they are here susceptible of review,
to rest on but a single legal proposition -- that is, the right of
a common carrier to make the ownership of goods tendered to him for
carriage the test of his duty to receive and carry, or, what is
equivalent thereto, the right of a carrier to make the ownership of
goods the criterion by which his charge for carriage is to be
measured. We say the contentions all reduce themselves to this
because, in their final analysis, all the other differences,
insofar as they do not rest upon the legal proposition just stated,
are based upon conclusions of fact as to which the judgment of the
Commission is not susceptible of review by the courts.
Baltimore & Ohio R. Co. v. Pitcairn, 215 U.
S. 481. This at once demonstrates the error committed by
the lower court in basing its decree annulling the order of the
Commission upon its approval and adoption of the reasons stated in
the opinion of the dissenting members of the Commission. This
follows since the reasons given by the dissenting members, except
insofar as they rested upon the legal proposition we have just
stated, proceeded upon premises of fact which, however cogent they
may have been as a matter of original consideration, were not open
to be so
Page 220 U. S. 252
considered by the court because they were foreclosed by the
opinion of the Commission. Doubtless the mistake of the court below
in this respect was occasioned by overlooking the scope of the
Hepburn Act and because the decision below was made in June, 1909,
before the announcement of the opinion in the
Pitcairn
case. The reasons above stated also serve to narrow the contentions
pressed at bar, since such contentions likewise in their essence
but reiterate the conflict of opinion which developed in the
Commission, but which, for the reasons stated, are, for the purpose
of our review, substantially reducible to the one legal question
which we have stated. We shall therefore confine ourselves to a
consideration of that question and to such brief notice of the
other contentions urged as will make clear that they depend
ultimately upon conclusions of fact not open in this Court for
review.
The contention that a carrier, when goods are tendered to him
for transportation, can make the mere ownership of the goods the
test of the duty to carry, or, what is equivalent, may discriminate
in fixing the charge for carriage, not upon any difference inhering
in the goods or in the cost of the service rendered in transporting
them, but upon the mere circumstance that the shipper is or is not
the real owner of the goods, is so in conflict with the obvious and
elementary duty resting upon a carrier and so destructive of the
rights of shippers as to demonstrate the unsoundness of the
proposition by its mere statement. We say this because it is
impossible to conceive of any rational theory by which such a right
could be justified consistently either with the duty of the carrier
to transport or of the right of a shipper to demand transportation.
This must be, since nothing in the duties of a common carrier by
the remotest implication can be held to imply the power to sit in
judgment on the title of the prospective shipper who has tendered
goods for transportation.
Page 220 U. S. 253
In fact, the want of foundation for the assertion of such a
power is so obvious that, in the argument at bar, its existence is
not directly contended for as an original proposition, but is
deduced by implication from the supposed effect of some of the
provisions of the second section of the Act to Regulate Commerce.
In substance, the contention is that, as the section forbids a
carrier from charging
"a greater or less compensation for any service rendered or to
be rendered in the transportation of passengers or property . . .
than it charges, demands, collects, or receives from any other
person or persons for doing for him or them a like and
contemporaneous service in the transportation of a like kind of
traffic, under substantially similar circumstances and
conditions,"
authority is to be implied for basing a charge for
transportation upon ownership or nonownership of the goods tendered
for carriage, upon the theory that such ownership or nonownership
is a dissimilar circumstance and condition within the meaning of
the section.
But this argument, in every conceivable aspect, amounts only to
saying that a provision of the statute which was plainly intended
to prevent inequality and discrimination has resulted in bringing
about such conditions. Moreover, the unsoundness of the contention
is demonstrated by authority. It is not open to question that the
provisions of § 2 of the Act to Regulate Commerce were
substantially taken from § 90 of the English Railway Clauses
Consolidation Act of 1845, known as the "equality clause."
Texas & Pac. Railway v. Interstate Commerce
Commission, 162 U. S. 197,
162 U. S. 222.
Certain also is it that, at the time of the passage of the Act to
Regulate Commerce, that clause in the English act had been
construed as only embracing circumstances concerning the carriage
of the goods, and not the person of the sender, or, in other words,
that the clause did not allow carriers by railroad to make a
difference in rates because of differences in circumstances arising
either before
Page 220 U. S. 254
the service of the carrier began or after it was terminated. It
was therefore settled in England that the clause forbade the
charging of a higher rate for the carriage of goods for an
intercepting or forwarding agent than for others.
Great Western
R. Co. v. Sutton, 1869, 4 H.L. 226;
Evershed v. London
& N.W. Ry. Co., 1878, 3 App.Cas. 1029, and
Denaby Main
Colliery Co. v. Manchester &c. Ry. Co., 1885, 11 App.Cas.
97. And it may not be doubted that the settled meaning which was
affixed to the English Equality Clause at the time of the adoption
of the Act to Regulate Commerce applies in construing the second
section of that act; certainly to the extent that its
interpretation is involved in the matter before us.
Wight v.
United States, 167 U. S. 512;
Interstate Commerce Commission v. Alabama M. R. Co.,
168 U. S. 144,
168 U. S.
166.
As these considerations are decisive of the only legal question
which, as we have already pointed out, the case involves, and also
refute a subordinate contention that a forwarding agent is not a
person within the meaning of that word as employed in the second
section of the Act to Regulate Commerce, we are brought, as we have
hitherto said, to briefly refer to minor considerations pressed in
argument, so far as they seem to us to be of sufficient weight to
be entitled to particular notice.
First. It is urged that, as the wide range of carload rates and
the extent of the facility for combining articles for the purpose
of obtaining such rates allowed in Official Classification
territory are the result of the voluntary act of the railroads,
therefore the power existed in the railroads to restrict and limit
the enjoyment of such rate, as was done by the assailed rules. In
the interest of the public, it is urged a limitation should not be
now enforced which would compel the carrier to withdraw the
facilities which shippers enjoy by the voluntary act of the
carriers. But the proposition rests upon the fallacious assumption
that, because a carrier has the authority to fix rates, it has
Page 220 U. S. 255
the right to discriminate as to those who shall be entitled to
avail of them. Moreover, the contention is not open for review,
because the legal question of the right of the carrier to consider
ownership under the second section having been disposed of, the
finding of the Commission that to permit the enforcement of the
rule would give rise to preferences and engender discriminations
prohibited by the Act to Regulate Commerce embodies a conclusion of
fact beyond our competency to reexamine.
Second. Conceding, for the sake of the argument, the correctness
of the construction which we have given to the second section, it
is urged that nevertheless, as a forwarding agent is a "dealer in
railroad transportation," and depends for his profit in carrying on
his business upon the sum which can be made by him out of the
difference between the carload and the less-than-carload rate, and
may discriminate between the persons who employ him, therefore the
Act to Regulate Commerce should be construed as empowering a
carrier to exclude the forwarding agent as a means of preventing
such discriminations. But, in the absence of any statutory
authority to exclude the forwarding agent, and basing the right to
exclude merely upon the assumption that the nature and character of
his business would produce discrimination, and therefore justify
the exclusion, the contention is not open for our consideration,
because, like the previous one, it is foreclosed by the finding of
fact of the Commission. Indeed, this is not merely the result of an
implication from the finding of the Commission, since it was
affirmatively found that to permit the carrier to exclude the
forwarding agent would be to produce preference and discrimination.
The contention, then, comes to this -- that carriers should be
permitted to give preferences and make discriminations as a means
of preventing those unlawful conditions from arising.
Third. It is said that as the business of the forwarding
Page 220 U. S. 256
agent is in a sense competitive with that of a carrier, and may
largely diminish the revenue derived by railroad companies from
their less-than-carload rates, and hence cripple their ability to
successfully conduct business, therefore the right to exclude the
forwarding agent, even if there is no power to exclude the owner or
the ordinary agent of owners, should be permitted. This, however,
again, in a two-fold sense, is directly in conflict with the
findings of fact made by the Commission -- first because it
disregards the findings as to the operation of the business of a
forwarding agent, and second because it overlooks the express
finding of the Commission that it would be so difficult, if not
impossible, for the carrier to determine in practice the nature and
character of the title of a person tendering goods for shipment
that the necessary result of a rule excluding a forwarding agent
would be to embarrass shipments by owners or their special agents,
and thus beget universal uncertainty and constant discrimination
and preference against owners.
As it follows from the reasons just stated that the court below
erred in annulling the order of the Commission and enjoining its
enforcement, its decree to that effect is reversed, and the case is
remanded, with directions to dismiss the bill.