A discrimination between shippers, in charges for
transportation, otherwise violative of § 2 of the Act to Regulate
Commerce, cannot be justified by the exigencies of competition
between carriers. P.
254 U. S. 62.
Wight v. United States, 167 U. S. 512.
Page 254 U. S. 58
In a case of alleged discrimination, findings of fact made by
the Interstate Commerce Commission as to the likeness of
contemporary transportation services rendered by carriers to
different shippers and as to the substantial similarity of the
circumstances and conditions in which they were rendered cannot be
disturbed by the courts where the action of the Commission is
neither arbitrary nor in excess of its authority. P.
254 U. S.
62.
Each of certain railroads, in transporting carload freight to
and from Richmond, made a practice of absorbing the charges for
switching between its line and industries on the lines of the other
railroads in that city if the freight moved over its line to or
from points served also by the railroads over which it must be
switched in Richmond, but refused to absorb such switching charges
where this switching service was to be performed by a
noncompetitive railroad.
Held: (1) that a ruling of the
Interstate Commerce Commission finding the practice discriminatory
between shippers and unlawful under § 2 of the Commerce Act, and
requiring the carriers to abstain from it and to maintain and apply
uniform regulations and practices for the absorption of such
switching charges and to collect no higher charges from shippers or
receivers of such freight at Richmond than they contemporaneously
collected from any other shipper or receiver of such freight there
for a like service under substantially similar circumstances and
conditions was not arbitrary or beyond the authority of the
Commission; (2) that the order was not too vague and uncertain to
be enforced. P.
254 U. S.
63.
249 F. 368 affirmed.
The case is stated in the opinion.
Page 254 U. S. 59
MR. JUSTICE DAY delivered the opinion of the Court.
In this case, a petition was filed in the District Court of the
United States for the Eastern District of Virginia to enjoin an
order of the Interstate Commerce Commission concerning the
absorption of switching charges on the lines of the Seaboard Air
Line Railway Company, the Seaboard Air Line Railway, Southern
Railway Company, and Atlantic Coast Line Railway Company within the
switching limits of these roads as established at Richmond,
Virginia.
The Commission's order was made upon a petition of the Richmond
Chamber of Commerce averring that the practice of the railroads was
discriminatory and unlawful, and violative of § 2 of the Act to
Regulate Commerce. From the facts found by the Commission, it
appears that the appellant railroad companies bring freight from
the South to Richmond, Virginia, where the same is delivered to
industries in the switching limits of that city. If the freight is
received at a point served by any two or more of the carriers, the
switching charge is absorbed if the freight be delivered on the
line of either, but if the delivery is to an industry served only
by a noncompetitive carrier, the switching charge is not absorbed.
The Commission illustrated the point by an example:
"Oxford, N.C., is a point reached both by the Southern and the
Seaboard, but not by the Chesapeake & Ohio. Norlina, N.C., is a
local point on the Seaboard. Assume that industries A. B, and C.
[referring to a diagram] on the Seaboard, the Southern, and the
Chesapeake & Ohio, respectively, are similarly located with
regard to the interchange tracks of the three carriers at Richmond.
On traffic from Oxford to industry B on the Southern, the Seaboard
will absorb the Southern's switching charges. But on traffic from
Oxford to industry C, on the Chesapeake & Ohio, the Seaboard
refuses to absorb the Chesapeake & Ohio's switching
Page 254 U. S. 60
charges. On traffic from and to Norlina, a local point, however,
the Seaboard refuses to absorb all switching charges whatsoever to
any off-line industry."
The order complained of directed the three carriers to cease and
desist, on or before August 1, 1917, and thereafter to abstain,
from absorbing switching charges on certain interstate carload
freight at Richmond, Virginia, while refusing to absorb such
charges on like carload shipments for a like and contemporaneous
service under substantially similar circumstances and conditions,
such practices having been found in a supplemental report to be
unjustly discriminatory and unlawful within § 2 of the Act to
Regulate Commerce, and
"to establish, on or before August 1, 1917, . . . and thereafter
to maintain and apply, uniform regulations and practices for the
absorption of charges for the switching of interstate carload
freight at Richmond, Va., and to collect no higher rates or charges
from shippers and receivers of such carload freight at Richmond,
Va., than they contemporaneously collect from any other shipper or
receiver of such carload freight at Richmond, Va., for a like and
contemporaneous service under substantially similar circumstances
and conditions."
44 I.C.C. 455.
The district court denied the application for an injunction, and
ordered that the petition be dismissed. 249 F. 368.
The contention of the appellants is that the carriage is not a
like and contemporaneous service in the transportation of a like
kind of traffic under substantially similar circumstances and
conditions.
Section 2 of the Act to Regulate Commerce provides:
"That if any common carrier subject to the provisions of this
act shall, directly or indirectly, by any special rate, rebate,
drawback, or other device, charge, demand, collect, or receive from
any person or persons a greater or less compensation for any
service rendered, or to be rendered,
Page 254 U. S. 61
in the transportation of passengers or property subject to the
provisions of this act 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, such common carrier shall be deemed guilty of unjust
discrimination, which is hereby prohibited and declared to be
unlawful."
24 Stat. 379.
Upon this controversy, the Commission in its report said:
"Complainant insists that, when the line-haul carrier reaches
the common point and competes for the traffic to or from Richmond
proper, the absorption of the switching charges should not be
confined to that traffic for which the switching line competes for
the entire haul -- that is, if the Seaboard absorbs the switching
charges for the shipper on the terminal tracks of the Southern, it
should also absorb the switching charges for the shipper on the
terminal tracks of the Chesapeake & Ohio. Unless this is done,
complaint contends that the two shippers are not upon an equality,
since the Seaboard pays for a delivery service to shippers on the
terminal tracks of the Southern, and declines to pay for a similar
delivery service to shippers on the terminal tracks of the
Chesapeake & Ohio. . . ."
"Section 2 is primarily directed against discrimination between
shippers located in the same community. It is aimed to put all
shippers within a switching district upon a substantial equality.
It provides that, where a carrier receives from any person a
greater compensation for any service rendered in the transportation
of passengers or property than it receives from any other person
for doing for him a"
"like and contemporaneous service in the transportation of a
like kind of traffic under substantially similar circumstances and
conditions, such common carrier shall be deemed guilty of unjust
discrimination,"
"a discrimination which is prohibited and declared to be
unlawful.
Page 254 U. S. 62
Under this section, it is settled that the competition of rival
carriers as such does not constitute substantially dissimilar
circumstances to justify a difference in treatment."
We are of opinion that the Commission was correct in regarding
the service in question as a like and contemporary service rendered
under substantially similar circumstances and conditions, and amply
sustained as matter of law in
Wight v. United States,
167 U. S. 512, and
ICC v. Alabama Midland Railway Co., 168 U.
S. 144. The principle established in these cases is that
the statute aims to establish equality of rights among shippers for
carriage under substantially similar circumstances and conditions,
and that the exigencies of competition do not justify
discrimination against shippers for substantially like
services.
Moreover, the determination of questions of fact is by law
imposed upon the Commission, a body created by statute for the
consideration of this and like matters. The findings of fact by the
Commission upon such questions can be disturbed by judicial decree
only in cases where their action is arbitrary or transcends the
legitimate bounds of their authority.
ICC v. Louisville &
Nashville R. Co., 227 U. S. 88;
Pre-Cooling Case, 232 U. S. 199;
Los Angeles Switching Case, 234 U.
S. 294,
234 U. S.
311-312, and cases cited;
Pennsylvania Company v.
United States, 236 U. S. 351,
236 U. S.
361.
The Commission did not hold that switching charges must be
always the same, but did hold that they must be alike where the
service was rendered under substantially similar circumstances and
conditions. The Commission's report says:
"We do not consider that the carriers must absorb the switching
charges indiscriminately to all industries within the switching
limits of Richmond, if they choose to absorb the switching charges
to any one industry off their rails.
Page 254 U. S. 63
The illegality herein found to exist is the receiving of a
greater compensation for one service than for a like service under
substantially similar circumstances and conditions. To take a
concrete example, and referring again to the diagram. Suppose
industry C were 5 miles distant from the interchange tracks of the
Seaboard, while industry B were only 2 miles distant. Suppose the
Chesapeake & Ohio's switching charge amounted to $5, while that
of the Southern was $2. If the Seaboard absorbed the Southern's $2
switching charge on traffic to industry B, we do not consider that
it must absorb the entire $5 switching charge of the Chesapeake
& Ohio on traffic to industry C, but only to the extent to
which the service is similar. In other words, it would probably be
necessary for the Seaboard to absorb $2 of the $5 charge of the
Chesapeake & Ohio."
The practice condemned by the Commission, as its report and
order show, was that of absorbing switching charges only when the
line-haul carrier competes with the switching line, and refusing to
absorb such charges when the switching line does not compete with
the line-haul carrier; this, the Commission held was discrimination
within the meaning of § 2 of the Act to Regulate Commerce. We find
no occasion to disturb this ruling as arbitrary in character or
beyond the authority of the Commission.
We find no merit in the contention that the order of the
Commission was too vague and uncertain to be enforced.
Affirmed.