(dissenting).
The sole issue before this court, as clearly shown by the briefs, is whether the services were rendered by Terminal as an agent of the carriers and on their behalf or whether such services were rendered as agent and on behalf of the shippers. If the services were rendered in the former capacity, they were a part of the carriers’ transportation duties and permissible under the tariffs on file. On the other hand, if they were rendered in the latter capacity, they were of benefit to the shippers, thereby constituting a favoritism, and illegal under the carriers’ operating tariffs. The court below recognized this issue and predicated its order upon the conclusion that the Terminal “stands in the shoes of the shipper.”
I agree with the Commission that this order can be sustained only on the theory that the Terminal was acting for and on behalf of the shippers, but I disagree with the Commission that there is any room for such a conclusion on the facts as stipulated. The majority, as I understand the opinion, ignores this vital issue upon which the case was tried below and upon which it is presented here, and holds that the services were illegal, irrespective of whether the services performed by Terminal were on behalf of the carriers or the shippers.
No good purpose could be served in citing or reviewing the cases, but I make bold to assert that no court has heretofore gone so far. I suspect that the Commission will be equally surprised with the carriers at the holding.
The cases cited in the opinion, as shown by the quotations therefrom, as well as all other cases so far as I am aware, are based upon the fundamental theory that payments made or services rendered by a carrier to a shipper or its representative and for its benefit constitute an illegal concession resulting in discrimination against a competitor. Notwithstanding such cases, the matter of discrimination or favoritism is apparently regarded by the majority as immaterial and is ignored. In fact, the opinion concedes, “for we are unable to appreciate how a shipper actually benefits by the Terminal Company’s services.” Thus, it appears the majority finds no support for the Commission’s theory that the Terminal was the agent of the shippers and that its services were rendered on their behalf.
The burden was upon the Commission to prove its contention that Terminal rendered its services on behalf of the shippers. In my opinion, the Commission not only failed to prove but the stipulated facts refute its theory. Each of the numerous carriers doing business at the warehouse building was free to employ or not to employ the services of Terminal, and each of the many shippers located in the building was equally free to utilize or not to utilize the services which the carriers through Terminal as their agent had provided. The agreement between the carriers and Terminal, made a part of and recognized by the stipulated facts as the existing agreement between the parties, provided: “The Terminal Company will receive all shipments of property *645tendered to the carrier for transportation at the Union Station * * Certainly it cannot be thought under such circumstances that any shipper in the building was favored or discriminated against. The carriers through their agent furnished the service for their own convenience and economy, and it was available to all shippers alike.
Of course, it may be argued that the services performed by these carriers were not available to shippers other than those located in the warehouse building, but the point is that there is no proof in this respect. It will be time enough to inquire into that situation when there is a refusal on the part of the carriers to provide for shippers located elsewhere and similarly situated facilities equal to those which are now made available to those located within the building. It is also pertinent to note that no competitor of the instant carriers or of the shippers, has complained of any discriminatory practices of which the Commission complains. In my view, the discrimination and favoritism which the Commission professes to discern and upon which it relies for an affirmance is without substantial support in the record. It may properly be characterized as a figment of the imagination.
In my judgment, the order appealed from should be reversed.