(dissenting). The rule for distribution of cars to coal mines, other than anthracite mines, in time of shortage, established while the railroads were under government control, was as follows:
“Copies of orders for cars for a mine tliat is joint with any other carrier (steam, electric or water) shall be filed with the designated representative of each such carrier, such combinations of orders must not exceed the gross daily rating of the mine.”
Joint mines are those served by two or more carriers. Local mines are those served by only one carrier. The rule meant that im car distribution joint mines were to be rated on the same basis as local mines: that is, they were to have no advantage by reason of the double service. After release of the railroads from federal control, the Interstate Commerce Commission recommended that carriers continue the rule in force “until such time as the experience of the carriers or the Commission should dictate other and more appropriate rules for the rating and distribution of cars to coal mine.”
On January 11, 1921, the complainants in this case filed complaints before the Interstate Commerce Commission against the Chesapeake & Ohio Railway Company and the Virginia Railway Company,, alleging the rule hereinbefore quoted, now known as rule 4 of Circular C. S. 31, to be unduly preferential to complainant’s competitors, the local mines. These cases before the Interstate Commerce Commission, known as Nos. 12083 and 12084, were consolidated with Nos. Í2081 and 12082, similar in character. After hearing, the Commission found rule 4 to be unjustly and unreasonably favorable to local mines, and further found that the joint mines should have a rating in car distribution in the proportion of 150 per cent, for the joint mines to 100 per cent, for the local mines; that is, the joint mines might have 75 per cent, on each carrier as against 100 per cent, to the local mines on one carrier.' At the conclusion of the opinion the Commission said:
“We liave not required that ear service rules be filed as tariff schedules. We will not in this proceeding direct that the rules wbicb we herein find to be reasonable be so filed. We shall expect, however, that defendants will promptly amend their car service rules, so as to conform with our finding and evidence same by filing copies thereof with us.”
No order was made by the Commission. Similar complaints, by coal operators in Indiana and Illinois, had been filed before the Commission, known as Bell & Zoller Coal Company et al. v. Baltimore & Ohio Southwestern Railroad Company et al., Nos. 12362 and 12399.. While these last complaints were pending, a petition was filed before the Interstate Commerce Commission by the owners of local mines concerned to reopen the former holding of the Commission in Nos. 12083 and 12084, that the 150 per cent, rule in favor of joint mines was just *467and reasonable. The cases were consolidated. After full hearing of" evidence and argument, the Commission reversed its former conclusions and found that rule 4- — the equality rule, without regard to whether a mine was served by one road or more — was just and reasonable. The complaints of the owners of all the joint mines, including those of the complainants in this suit, were dismissed by the following order:
“These cases being at issue upon complaints, answers, and intervening petitions on lile, and having been duly heard and submitted by the parties, and) full investigation of the matters and things involved having been had, and the Commission having, on the date hereof, made and filed a report containing its findings of fact and conclusions thereon, which said report is hereby referred to and made a part hereof: It is ordered, that the complaints in these proceedings be and they are hereby dismissed.”
There was never any order, or even final determination, of the Commission to put into effect any rule or to interfere with rule 4 of the railroads. The conclusions announced in its opinion were reopened, reconsidered, and changed; but all this was done in one consolidated proceeding, which was never ended until the Commission made the order above quoted. This last order was a final dismissal of the complaints, and a refusal to take any action with respect to rule 4 of the railroads. It was, therefore, a negative order — a mere refusal to interfere with an existing rule. As such it was not reviewable by this court. Proctor & Gamble v. United States, 225 U. S. 282, 32 Sup. Ct. 761, 56 L. Ed. 1091. The action of the Interstate Commerce Commission in'the case cited had more the semblance of affirmative action than in this, for there Proctor & Gamble asked the revocation or modification of a rule expressly approved by the Commission, while here, in a continuous proceeding, the Commission merely reached the ultimate conclusion that it would not interfere with an existing rule of the railroads. I therefore think the court had no jurisdiction whatever to enjoin the railroads from operating under rule 4 as a rule established by affirmative action of the Interstate Commerce Commission.
Even, however, if rule 4 had been adopted and put into effect by the Interstate Commerce Commission, it seems to me perfectly clear that this court has not power to change it. It is apparent from the above statement that the Interstate Commerce Commission has devoted much time and care to the consideration of the justness and reasonableness of the rule. To say the least, it cannot be doubted that the whole matter is debatable, and that there are very strong reasons in favor of rule 4, as distinguished from the 150 per cent, rule claimed by the complainants. Even if this Court entertains the opinion that the action of the Commission was unwise and improper, that affords no ground to say that a prima facie case for an injunction has been made out. Interstate Commerce Commission v. Illinois Cent. R. R., 215 U. S. 452, 478, 30 Sup. Ct. 155, 54 L. Ed. 280; Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075; Manufacturers’ Ry. Co. v. United States, 246 U. S. 457, 38 Sup. Ct. 383, 62 L. Ed. 831; Skinner & Eddy Corporation v. United States, 249 U. S. 557, 562, 39 Sup. Ct. 375, 63 L. Ed. 772; Seaboard Air Line Ry. Co. v. United States, 254 U. S. 57, 62, 41 Sup. *468Ct. 24, 65 L. Ed. 129; Akron, Canton & Youngstown Ry. Co. v. United States, 43 Sup. Ct. 270, 67 L. Ed. 605 (decided February 19, 1923). The authority of this court is—
“confined to determining whether there had been violations of the Constitution, or of the power conferred by statute, or an exercise of power so arbitrary as virtually to transcend the authority conferred. Interstate Commerce Commission v. Illinois Central R. Co., 215 U. S. 452, 470; Interstate Commerce Commission v. Union Pacific R. Co., 222 U. S. 541, 547; Procter & Gamble v. United States, 225 U. S. 282, 297; Interstate Commerce Commission v. Baltimore & Ohio R. Co., 225 U. S. 326, 340.” Kansas City So. Ry. v. United States, 231 U. S. 440, 34 Sup. Ct. 129, 58 L. Ed. 296, 52 L. R. A. (N. S.) 1.
There is no ground for the argument that the refusal of the Interstate Commerce Commission to, set aside rule 4 is an invasion of any constitutional right of the plaintiffs. Akron, Canton & Youngstown Ry. Co. v. United States, 43 Sup. Ct. 270, 67 L. Ed. 605 (decided Feb. 19, 1923). The court has no power under the statute to regulate interstate commerce; it can only interfere with the action of the Interstate Commerce Commission when the Commission has taken affirmative action contrary'to the Constitution or the statute, or has taken such arbitrary action as virtually to transcend its authority. To grant the injunction on this debatable question seems to me to be setting up the judgment of the court upon a question of fact against the findings of the Interstate Commerce Commission, and that is beyond the power of the court.