(dissenting) — I am unable to concur in the conclusion reached by the majority. The facts are stated in the opinion, but it may be well to recapitulate them here in a more compact form. The respondent owns and operates a private manufacturing plant at the city of Tacoma. In connection with its business, it owns a private railway track constructed upon its own property which connects with the railway tracks of the appellant, a common carrier. In the prosecution of its business, the respondent uses quantities of cotton seed oil. This it must transport to its place of business from the cotton growing region over the tracks of the appellant. To transport the oil economically, requires cars of a special design which cannot be used in general railway traffic, which the appellant does not possess and which *253it refused to furnish on the demand of the respondent. To meet its needs, the respondent constructed private cars of its own designed especially for the particular purpose. As it needs a supply of the particular product, the respondent tenders these cars to the appellant, which transports them empty to a place designated, where they are laden, and then returns them to the respondent, shunting them laden onto its private tracks after the payment of the transportation charges. The appellant has no control over the cars beyond the time they are in its possession. After they are redelivered to the respondent, it has no power to direct their movements or their place of storage, nor can it require their return into its service against the will or consent of their owner. It contends, nevertheless, that it has the right, under the rules of the Interstate Commerce Commission, to have the lading removed from the cars within a fixed time after their redelivery, and as a penalty for failing to remove the lading within the fixed time, to charge demurrage thereon during the time of the ensuing delay in the removal of the lading.
The majority hold that, under the rules mentioned, such demurrage can be collected, and hold further that the reasonableness of the rules, conceding the interpretation put upon them to be correct, cannot be set up by the owner of the cars as a defense to an action brought in a state court by the carrier to enforce payment of the demurrage. It is from both of these conclusions that I dissent.
The rules of the Interstate Commerce Commission are set out in the majority opinion. It may be that a literal interpretation of them would support the majority, but it is clear to my mind that the respondent’s situation does not fall within the spirit of the rules, and that as applied to its situation they are unreasonable and hence void. The demurrage rules cited were made necessary by conditions existing in the coal regions. It was found that many owners and operators of coal mines held a large number of private cars, which they used to ship coal to dealers therein. This enabled them to *254confer on their dealers an advantage not afforded dealers who were served by cars belonging to the carrier; as in the one case the dealer could hold the cars with the consent of the shipper, and team directly to his customers, while the others, under the penalty of demurrage, were forced to unload promptly at an additional cost. Moreover, the cars were at all times in actual service. No sooner were they unloaded than they were returned for another load, and, aside from this special privilege and immunity, were the equivalent of similar cars owned by the carrier. Under these circumstances, it might not be unreasonable to say that the coal companies should not be permitted to confer this advantage on dealers receiving coal in the coal company’s private cars, but that all such cars should be treated as in the public service until returned unladen to their owner. But manifestly no such condition exists here.
The cars in question are not used to ship the respondent’s products to dealers to be sold in competition with other dealers who use cars belonging to the carrier. On the contrary, they are used to ship a particular product from a distant point to the respondent. They are not used in competition with any one. The respondent owns them from the necessities of the case, because of the refusal of the carrier to furnish cars for the service. The rule concedes that the carrier has no control over them after they are once unladen. The respondent can use them after such time for any purpose it pleases. This would mean that it could reload them with the same product and hold them in storage as long as it chooses. Again, neither the carrier nor the public suffer harm by the failure to unload the cars within the limited period, nor does any advantage accrue to either by having them unloaded. The requirement in so far as it applies to the respondent’s situation is therefore useless and senseless; it is a sacrifice of the substance to the shadow.
“Beyond controversy, in determining whether an order of the commission shall be suspended or set aside, we must *255consider, a, all relevant questions of constitutional power or right; b, all pertinent questions as to whether the administrative order is within the scope of the delegated authority under which it purports to have been made; and, c, a proposition which we state independently, although in its essence it may be contained in the previous one, viz., whether, even although the order be in form within the delegated power, nevertheless it must be treated as not embraced therein, because the exertion of authority which is questioned has been manifested in such an unreasonable manner as to cause it, in truth, to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power.” Interstate Commerce Commission v. Illinois Cent. R. Co., 215 U. S. 452.
Other reasons could be given in support of my contention, but the foregoing sufficiently satisfy my mind that the rule was either not intended to apply to the respondent’s situation, or that it is void because unreasonable.
The second rule laid down in the majority opinion seems to me to be likewise unmaintainable. A rule of the Interstate Commerce Commission has no greater sanctity than a state or Federal statute, and no court, so far as I am aware, hesitates to hold these invalid when they plainly violate the fundamental rights of individuals. Nor does the case relied upon by the majority, in my opinion, sustain its conclusion. The court was there discussing the extent of the jurisdiction of the Commerce Court. The case arose out of these facts: The Procter & Gamble Company, being dissatisfied with the regulations concerning demurrage in so far as they imposed regulations upon the use of its tank cars, filed a complaint with the Interstate Commerce Commission charging the rules to be unjust and oppressive and repugnant to the act to regulate commerce. After a hearing, the commission made a report, denying the relief sought. The company thereupon sought to review this act in the Commerce Court. That court entertained jurisdiction, and considered the case upon its merits, affirming the report of the Commission. The case was *256then appealed by the Procter & Gamble Company to the Supreme Court of the United States. That court declined to consider the cáse upon its merits, holding that the act creating the Commerce Court conferred on that court jurisdiction to review only “affirmative orders of the commission,” but not jurisdiction to redress complaints where the commission had refused the relief asked, and that, since the Commerce Court was without jurisdiction, it was likewise without jurisdiction to pass upon the merits of the complaint. This to my mind is far from holding that a court whose jurisdiction is sought to enforce a rule of the Interstate Commerce Commission is without jurisdiction to inquire into the reasonableness or validity of the rule.
I have found no case precisely in point. Cases are abundant, however, where the courts have entertained suits to restrain the order of the Commission claimed to be unjust and unreasonable, and hence in excess of the Commission’s powers. If this may be done in advance of their attempted enforcement, I see no reason why one may not urge the principle where an attempt is made to acquire an advantage based upon the invalid rule.
I need not pursue the inquiry.. I am of the opinion that the judgment of the trial court is in accordance with law, and should be affirmed.