(dissenting). The facts are sufficiently stated in the majority opinion. The decision depends upon the application of the following sections of the Interstate Commerce Act:
“Sec. 2. Tliat if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty ol unjust discrimination,'which is hereby prohibited and declared to be unlawful.
“Sec. 3. That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.
“Every common carrier subject to the provisions of this act shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines; but this shall not be *373construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business.”
The controversy comes to this: If transportation to Richmond is to be regarded unitary, and the delivery to different industries on tracks of the different roads merely incidental to delivery in Richmond, and not a separate item of carriage, then all switching charges must he put on the same basis, under section 2. On the other hand, if the law contemplates that carriage to the depot of each railroad in Richmond, or to an industry on its own switch, is to be regarded as transportation to one destination, and transportation from the depot of each railroad to an industry on the switch of another railroad is to be regarded a separate act of transportation of another road to its ultimate destination, then the switching charges to industries on the different railroads may he charged differently under section 3 (Com]). St. 1916, § 8565) provided the difference is reasonable and founded on substantial difference in condition, and in determining whether there is a substantial difference in conditions the fact of competition may be taken into the estimate under that section.
Prior to its decision in this case, the Interstate Commerce Commission has always considered switching carriage as a separate service for which a separate tariff may be made. Leonard v. Chicago, etc., R. R. Co., 12 Interst. Com. Com’n R. 492; Curtis v. Southern Pacific R. R. Co., 23 Interst. Com. Com’n R. 372; Ohio, etc., Co. v. Chicago, etc., Co., 28 Interst. Com. Com’n R. 703. In the Curtis Case it is stated that this is the general practice of the railroads of the United States. The right of the carrier to treat the terminal charge as a different item of carriage and the different industries on the switch lines as different terminals is clearly recognized in Interstate Commerce Commission v. Stickney, 215 U. S. 98, 105, 30 Sup. Ct. 66, 67 (54 L. Ed. 112), in this language:
‘•By section 15 the Commission is authorized and required, upon a complaint, to inquire and determine what would be a just and reasonable rate or rates, charge or charges. This, oí course, includes all charges, and the carrier is entitled to have a finding that any particular charge is unreasonable and unjust before it is required to change such charge. For services that it may render or procure to be rendered off its own.lino, or outside the more matter of transportation over its line, it may charge and receive comnensation. Southern Railway Co. v. St. Louis Hay & Grain Co., 214 U. S. 297 [29 Sup. Ct. 678, 53 L. Ed. 1004].”
Accordingly the .United States Supreme Court has always considered the lawfulness and reasonableness of switching charges under section 3, and not under section 2. Pennsylvania Railroad Co. v. United States, 236 U. S. 351, 35 Sup. Ct. 370, 59 L. Ed. 616; Louisville & N. R. R. Co. v. United States, 238 U. S. 1, 35 Sup. Ct. 696, 59 L. Ed. 1177; Louisville & N. R. R. Co. v. United States, 242 U. S. 60, 37 Sup. Ct. 61, 61 L. Ed. 152.
Competition is a fact which both the carrier and the shipper have a right to have estimated in the decision whether terminal charges and differences in them are reasonable. Whether competition is a fact of *374such practical importance in every instance as to justify terminal charges based'on that alone is, of course, a question for the Interstate Commerce Commission. Interstate Commerce Commission v. Alabama, etc., R. R. Co., 168 U. S. 144, 166, 18 Sup. Ct. 45, 42 L. Ed. 414; Louisville, & N. R. R. Co. v. United States, 238 U. S. 1, 35 Sup. Ct. 696, 59 L. Ed. 1177. _
_ The view of the majority of the Commission is that to make a distinction in-switching charges at Richmond or any other city based on competition between rival lines is to violate section 2 of the act. But that section was intended to enforce equality to shippers over the same line, and to prohibit any rebate or other device by which two shippers shipping over the same line, the same distance, and under the same conditions of carriage are compelled to pay different prices therefor. Interstate Commerce Commission v. Alabama, etc., Co., supra. Hence the conclusion of the majority of the Commission must necessarily rest on the proposition that a shipment ovei; any road into Richmond has reached its railroad destination as soon as it reaches the railroad’s terminal in Richmond, and that transportation by another road over its rails to the consignee is not a separate transportation on another line, but a mere incident of delivery, and that therefore all industries on any of the other roads must be put on a basis of equality without respect to competition. This conclusion was reached on the theory that the decision in the case of Wight v. United States, 167 U. S. 512, 17 Sup. Ct. 822, 42 L. Ed. 258, is inconsistent with the practice of the Interstate Commerce Commission, sanctioning the customs of railroads in making switching service a separate tariff item. I think it clear that this case has no such bearing.
The Wight Case relates entirely to an advantage given to one shipper, Bruening, over another, by a rebate of 3% cents per 100 pounds, the cost of drayage from the railroad depot to his storehouse, in order to equalize his rate and to get his business from a competing road on which the industry was situated; whereas, Wolf, his competitor, whose storehouse was not situated on the competing road, had to pay his own drayage. In such case the court necessarily held that such a practice was not only in fact giving a rebáte,' in violation of section 2, but would open the door to the abuses which section 2 was obviously intended to prevent. The drayage there paid for by the railroad was not a part of railroad transportation. Switching by another road, after delivery to it, is a different act of railroad transportation on a separate line. In that case it was held that the railroad company could not, on the ground of competition, pay for a service entirely out of its line of business; but this decision gives no countenance to the idea that competition may not be taken into the account in fixing the tariff for railroad switching service.
Since transportation on a railroad switch to industries in a city lo-. cated on other roads is carriage to a different destination, separate from the line haulage, and subject to a different tariff, it follows, un-, der the decision above cited, that competition may be taken into consideration in fixing the charges, and that the petition should be granted.
*375The decision in which the majority of the Interstate Commerce Commission concurred was made on the ground that as a matter of law competition could not be taken into account in fixing switching charges in the circumstances stated. In this I think that there was error of law. Of course, I intimate no opinion as to whether competition in this particular instance furnished a reasonable basis for absorbing the charges for delivery on the switches of competing roads and not absorbing them on the switches on uoncompeting roads. That is a question for the Commission, which this court has no power to anticipate.
I think the injunction should be granted.