(dissenting). The Interstate Commerce Commission found that the practice of the Pennsylvania Railroad Company and the Western Maryland Railway Company of extending the use of their tracks to each other for the purpose of terminal receipt and delivery of freight at industries at York within a zone described (between Beaver street and West Market street crossing), while refus*528ing to extend the use of their tracks for the purpose of delivery or receiving freight at other industries, similarly located, but without the zone, under substantially similar circumstances and conditions, is subjecting various shippers and industries to undue prejudice, and on this finding the Commission rested the order to cease and desist in practicing the undue prejudice found to exist. This order has been brought here on complaint of the Pennsylvania Railroad Company, claiming that it was beyond the authority of the Commission on the finding to enter an order interfering with the practice of the companies as found.
The action of the Commission is said to be based on section 3 of tire Interstate Commerce Act of 1887 (Comp. St. § 8565), which provides :
“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 pers’on, 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.”
The Commission having found that unlawful discrimination, or unreasonable prejudice and disadvantage, results from the practice found to exist, by authority of section 15 of the Act1 was empowered to enter the order made. If the action of the Commission exercised was not absolutely without want of conformity to statutory authority, and not unsupported by testimony, the court will not disturb it. Proctor & Gamble v. United States, 225 U. S. 282, 32 Sup. Ct. 761, 56 L. Ed. 1091; Interstate Commerce Commission v. D., L. W. R. R., 220 U. S. 235, 31 Sup. Ct. 392, 55 L. Ed. 448; Los Angeles Switching Case, 234 U. S. 294, 34 Sup. Ct. 814, 58 L. Ed. 1319; Houston E. & W. T. Ry. v. U. S., 234 U. S. 342, 34 Sup. Ct. 833, 58 L. Ed. 1341.
Petitioner company’s reliance here is on the alleged principle of law that no prejudice, preference, or discrimination prohibited by the act can result from the possession, extension, or acquisition of track-age facilities to or by one carrier over the tracks of the other. In *529other words, without public demand, which, it has been found, does not here exist, it is argued that the railroad companies may extend or retract their lines or use of each other’s tracks at will, without regard to the effect on shippers, and, having used its existing facilities, merely by the practice of extending the trackage facilities between Beaver street and West Market street crossing impartially as effecting shippers within the zone, the Commission -may not legally find that such results in discrimination against or to the prejudice of others located in the vicinity and along the lines of the parties associated in the practice but beyond the zone favored, upon the principle that the extension of trackage facilities either by trackage agreement or otherwise does not support the charge of undue prejudice. This proposition is generally sound, but where, as it has herein been found, the advantage of the shipper within the zóne results from the contract of the carriers, and not from a controlling transportation difference, the situation of industries inside and outside of the zone being substantially similar from the standpoint of carriage, the exception to the general rule arises.
The discrimination arises, not alone from the use of the particular track or tracks, but from the use of both interchangeably, as fully set forth and found by the Commission. The two roads, Pennsylvania and Western Maryland, unquestionably interchange traffic with each other, and without distinction between competitive and noncompetitive traffic. The cars of both roads are moved over the individually owned tracks of the other within the zone, to and from the industries on the other, and both lines are rendered equally available to industries located exclusively on one. It is not contended that the discrimination found arises from denying to any one within the zone of agreement what is denied to others so located, but the discrimination or prejudice found lies in a comparison of advantages similarly located within and without the zone; but the reply is that such comparison cannot be tolerated, since the companies have a right to use their properties as they choose, as long as they deal with those in a favored locality alike. This doctrine should not find approval. If true, the two companies may at any time at will restrict this favored locality by confining their trackage agreement over a limited area of a square or even less extent along the favored area or zone, without regard even of those whom by the present arrangement they are obliged to serve without undue prejudice.
Appearing that the Commission has not acted arbitrarily in finding that prejudice results from the practice of the companies within the zone as compared with interests located beyond similarly located in the same situation, it cannot be said that their order was beyond the statute authorizing their action. Pennsylvania Co. v. U. S., 236 U. S. 351, 35 Sup. Ct. 370, 59 L. Ed. 616; Louisville & Nashville R. Co. v. United States, 238 U. S. 1, 18, 19, 35 Sup. Ct. 696, 59 L. Ed. 1177. It the former case, at the instance of the Buffalo, Rochester & Pittsburgh Railway Company, it was held by the Interstate Commerce Commission “that inasmuch as the Pennsylvania’s Company’s refusal to accept from and 'move to the Rochester Company carload lots of freight within the switching limits of New Castle, while performing the service •in connection with the said other three carriers” by mutual agreement *530“within said switching limits was a discrimination, the same was undue, unreasonable, and in violation of the Act to Regulate Commerce,” followed by an order to direct the Pennsylvania Company to cease and desist from such undue and unreasonable practice discriminatory as against the Rochester Company. An injunction was denied by the District Court. The Supreme Court, in affirming this action, stated all that the Commission ordered was that the company desist from discriminatory practice herein involved, and in so doing we think it exceeded neither its statutory authority nor any constitutional limitation, and the District Court was right in so determining.
Nor can it be said that their order is voidable because it is not confined to the regulation of interstate commerce. The subject under consideration related to” such commerce, and, presuming that they acted within their scope of their authority, it may be inferred that their action related to such commerce, without making definite mention of it in the order.
Section 15: “That if in any case in which an investigation shall be made by said Commission it shall be made to appear to the satisfaction of the Commission, either by the testimony of witnesses or other evidence, that anything has been done or omitted to be done in violation of the provisions of this act, or of any law cognizable by said Commission, by any common carrier, or that any injury or damage has been sustained by the party or parties complaining, or by other parties aggrieved in consequence of any such violation, it shall be the duty of the Commission to forthwith cause a copy of its report in respect thereto to be delivered to such common carrier, together-with a notice to said common carrier to cease and desist from such violation, or to make reparation for the injury so found to have been done, or both, within a reasonable time, to be specified by the Commission; and if, within the time specified, it shall be made to appear to the Commission that such common carrier has ceased from such violation of law, and has made reparation for the injury found to have been done, in compliance with the report and notice of the Commission, or to the satisfaction of the party complaining, a statement to that effect shall be entered of record by the Commission, and the said common carrier shall thereupon be relieved from further liability or penalty for such particular violation of law.” 24 Stat. 384.