The commission found that the business or industry of the shipper was permanently located on an industry track of the railroad at Coeur d'Alene. The railroad admits the sufficiency of the evidence to sustain this finding. Rule No. 6 of the Northern Pacific Tariff, 91-G, Public Utilities Commission of Idaho No. 467, I.C.C. No. 7535, provides as follows:
"Rule No. 6. The switching rates named in Sections 1, 2 and 4 of this tariff applying from track connections with other lines cover business handled to or from connecting lines for the accommodation and benefit of industries located upon this company's tracks, and will apply only when shipments are forwarded or received by the owner of a warehouse or industry permanently located upon this company's tracks."
It follows, therefore, that the order merely directs the railroad to do that which its tariff rules provide.
The majority opinion treats of the order of the Public Utilities Commission as applying to past shipments. Conceding solely for the sake of argument that such be the proper application, there is no difference in principle between the facts as disclosed by the record and the facts considered inChicago, M. St. P. Ry. Co. v. Iowa, 233 U.S. 334,34 Sup. Ct. 592, 58 L. ed. 988, wherein the supreme court of the United States sustained the Iowa state supreme court and the Iowa State Railroad Commission in holding that the shipments in question were intrastate shipments.
The order on its face applies to future shipments only and such decision is thus complete authority for sustaining the action of the commission, the court saying:
"In the light of its decision, the order of the Commission must be taken as referring solely to intrastate transportation originating at Davenport." *Page 489
The plaintiff having failed to establish any ground for invalidating the order of the commission, the same should be affirmed.
I am authorized to say that Wm. E. Lee, C.J., joins in this dissent.
Petition for rehearing denied.