Argument for the United States. 234 U. S. charges within the yard limits of Los Angeles, California, are stated in the opinion. Mr. Blackburn Esterline, Special Assistant to the Attorney General, with whom The Solicitor General was on the brief, for the United States, Intervenor: The action of the Commerce Court in refusing to sustain the motions of the United States to dismiss the bills, and in holding, on the face of the bills alone, that the court had the power to decide, notwithstanding the findings of the Commission based on the evidence, that the service of making deliveries on the spur tracks was different from the service of making deliveries on the team tracks, with a consequent difference in the cost, was so flagrantly erroneous as to require a reversal of the judgments and the dismissal of the bills. The question as to what are and what are not terminal facilities is manifestly a question of fact to be determined according to the circumstances of each particular case. The findings made by the Commission, after a careful review of all of the attending facts and circumstances, that the spur tracks in question are a part of the carriers terminal facilities, to the same extent as the stations, team tracks, and freight sheds, are conclusive upon the courts. The findings of the Commission are not only in accord with the facts before it, but they are also in accord with the express provisions of the Act to Regulate Commerce, as well as with certain well considered judicial decisions,all of which the Commerce Court ignored. See § 7 of the act approved June 18, 1910, 36 Stat. 539, 544, 545, which reënacted, in its original form, § 1 of the act of June 29, 1906, 34 Stat. 584; Vincent v. Chicago & Alton R. R. Co., 49 Illinois, 33, 41; Chicago & North West. Ry. Co. v. The People, 56 Illinois, 365, 382; Coe & Milsom v. Louis. & Nash. R. R. Co., 3 Fed. Rep. 775, 778; Covington StockYards Co. v. Keith, 139 U. S. 128, 135. 234 U. S. Argument for the United States. The case at bar is not that of a carrier making delivery "to a point off its line" by means of a terminal company, for which it is entitled to make an extra charge, as in Int. Com. Comm. v. Stickney, 215 U. S. 98. The present controversy is limited to the single question of the right of the appellees to make an extra charge for deliveries made on spurs which constitute a part of their terminals, tracks, facilities, and equipment. The carriers established, and for many years maintained, the practice of making deliveries on the spurs as a part of their terminals and facilities. The shippers have, at all times, acquiesced in that practice. On complaint duly filed, and after a full hearing, the Commission dealt with the practice in all of its aspects. Its order, in pursuance of its investigation, is a mere regulation. The terminal facilities of carriers, with these spurs as a part, have time and again been the subject of consideration by Congress. Against the judgment of the carriers, the shippers, the Commission, the Congress, and the courts, the Commerce Court, with its holding, stands alone. It is manifest, from its report, that the Commission considered all of the facts and circumstances. No claim to the contrary is made. The Commission also considered the difference between the American and English systems of dealing with terminal services and charges. The findings of the Commission are also supported by facts of such common observation as to be within the scope of judicial knowledge. Without the use of the spurs as terminal facilities, all of the enormous carload tonnage into or out of Greater New York must be handled on a common team track, or in a common depot. The same situation would obtain at Chicago, Pittsburgh, and all other large terminals. The livestock, ore, coal, oil, lumber, grain, and all other carload freight, would be unloaded on a common team track, or in a common depot, and crudely handled by the consignees through the streets of the cities. That Argument for the United States. 234 U. S. the Commerce Court substituted its judgment, on these facts and circumstances, for that of the Commission, is beyond question. A comparison of the language used by the Commission with that of the court conclusively demonstrates it. The Commerce Court reviewed the element of the socalled water competition, and substituted its judgment that the industrial track service is not the same as the team track or depot service, for the contrary judgment of the Commission. In doing so, the Commerce Court assumed an authority which this court, for the past ten years, has persistently condemned in every decision relating to the respective functions of the Commission and the courts. The Commission found that these spurs and sidetracks were a part of the terminal facilities; that deliveries thereon were the same, in cost and character, as the deliveries on the public team tracks; that the line haul rates for all other shippers embraced, without additional charge, deliveries on the terminals; and that out of 10,000 cities in the United States where terminal services are performed, only in the cities of San Francisco, Los Angeles, and San Diego, was this spur track charge imposed. Having made these findings, the conclusion of the Commission that the extra charge was unlawful followed as a matter of course. No justification is given for the extra charge of $2.50 for spur track delivery. The appellees are practically the only carriers who may compete for the freight, and it is easy for them to agree. When competition is inimical to their interests, they do not compete. When asked by the Commission why this charge was made at these points, the traffic manager, of one of the roads replied, "Because we can get it." Another railroad official who appeared before the Commission explained the non-existence of such a charge at all other points on his line, as well as throughout 234 U.S. Argument for Appellees. the country at large, by saying that the absence of such a charge was "a tribute to competition.' The Commerce Court held that "the ultimate conclusion of the Commission is a mixed question of law and fact which certainly ought not to be conclusive upon this court." But this court has held that even on a mixed question of law and fact the findings of the Commission are conclusive. Ill. Cent. R. R. Co. v. Int. Com. Comm., 206 U. S. 441, 455, 459. Mr. P. J. Farrell for the Interstate Commerce Commission. Mr. Fred H. Wood and Mr.Gardiner Lathrop, with whom Mr. Robert Dunlap, Mr. T. J. Norton, Mr. C. W. Durbrow, Mr. W. F. Herrin and Mr. J. P. Blair were on the brief, for appellees. There was no abuse of power in issuing injunction pendente lite. The switching charge is not embraced in regular rate. It covers a special service rendered under special contract and separate charge therefor is legal. There is no dispute as to meaning of tariffs. The charge is imposed for special service not rendered to public in general and properly stated separately and in addition to freight rate. The charge is separately stated in pursuance of § 6 of the Interstate Commerce Law. There are other instances in which a separate charge has been imposed in addition to usual rate. It is not obligatory upon a railway company to construct industrial spurs and deliver and receive freight thereon. Any obligation is wholly contractual and a separate charge for such service is proper. The Government's cases are not in point. The charge is not violative of § 2 of the act concerning unjust discriminations. Argument for Appellees. 234 U. S. The charge was not found to be violative of § 3 of the act concerning undue preferences. It is error to consider the supposed practice of railway companies, in general, making free deliveries at private industries, as they would not disclose the legal duties of carriers complained against under the Interstate Commerce Law, and the Commission was confined to ascertaining and determining whether these particular railway companies in making the charge complained of were doing or omitting to do something in contravention of some provision of that law. It conclusively appears from the form of the order and the face of the Commission's report that the order is not based upon any finding of discrimination under either the second or third sections, but upon a construction of the statute which would forbid any carrier from separating its terminal and haulage charges on the same shipment. The Commission's construction of the law is erroneous. By the plain intendment of the language used, carriers performing a road service between termini may separately state the charges for carriage between places named in the tariffs and their own terminal services performed at the places between which such transportation is conducted. The Commission's construction is contrary to the purposes and scope of the statute as shown by its legislative history. The Commission's construction is contrary to the construction of the English act at the time of the passage of the Act to Regulate Commerce. In the construction of this statute no assumed custom of embracing within a single charge compensation for these two services can weigh against the plain reading of the statute and the contemporaneous construction of similar provisions in the English law. In so far as the order is predicated upon any assumption that the cost of team track delivery and industry track |