If the switching of the car from the appellant's tracks over the switches of the Missouri, Kansas Texas Railway Company to the elevator is a part of the interstate shipment, the Corporation Commission had not jurisdiction of this matter. The converse would be true if it were an intrastate shipment beginning at Bliss, Okla., and ending at Oklahoma City. As to whether it was such, it is not essential here to determine. The appellant neither performed the service *Page 169 nor made the charge therefor, and, had it not collected such charge from the shipper, it would doubtless have been required by the Missouri, Kansas Texas Railway Company to pay same. Rule 6 of Order 45 is in words and figures as follows:
"Milling in transit shall be permitted at any point, and no switching or other charges shall be added to the rates named herein for such services where mill is located on track of road handling. Where mill is located on a different line from the one handling, and only a switching service is performed, a switching charge not to exceed one dollar per car each way shall be charged, and the switching service shall not be considered forming a two-line service. This privilege shall be granted regardless of whether shipment is moving to mill and to be returned, or where mill is located off direct route of shipment, but where a shipment is moving between points available via two or more routes and owner or shipper designates a mill situated at or near a station not on the direct line of haul, rate will be charged for the entire actual mileage, regardless of rate in effect between point of origin and destination."
The facts in this record appear to show that the Missouri, Kansas Texas Railway Company, and not the appellant, if any one, has violated this rule. The conclusion reached by the chairman in his dissent, to the effect that the appellant did not violate such rule, seems to be correct.
The evidence offered for the purpose of showing that the original order which the appellant was charged with having violated was unreasonable and unjust should have been admitted. Section 19, art. 9, Const. Okla.
The order of the Corporation Commission as entered by the majority of its members is accordingly reversed and remanded, with instructions to quash the information and dismiss the charge against the appellant.
All the Justices concur. *Page 170