(dissenting). The Commission in its report does not clearly indicate whether it deems the transportation of the Ar-buckle sugar to begin in New York or in Jersey City. It is conceded by counsel that this is a question of law to be determined by this court. As to goods shipped by Arbuckle Bros, to others than themselves as consignees, there would seem to be no room for doubt, for whatever may be the liability of the Ja.y Street Terminal toward such consignees, clearly the railroad companies are liable to them as common carriers at the latest from the time of the delivery of the goods into the cars and the issuance of the bill of lading in their name by their authorized agents in New York. I concur in the conclusion of the majority of the court that this transportation begins in New York.
As to the comparatively small percentage of shipments of which Arbuckle Bros, are the consignees as well as the consignors, this would seem to be equally true. The title thereto could be transferred by them immediately after the bills of lading are issued, and in that event the railroad companies would again clearly be liable as carriers to the assignees, even though the goods had not yet actually moved from New York. And the retention of title thereto by Arbuckle Bros, during the time that they, acting as agents for the railroad companies, are transporting them to Jersey City under the contract by which they agree to indemnify the railroad companies against their own acts, and thereby to release them, in a sense, from the obligations which they would ordinarily incur as common carriers toward the owners of goods carried, would not of itself change the transaction from a trans-*794p'ortation service performed by the railroads through their agents, the shippers, into an accessorial service performed by the shippers solely on their own account, payment for which would be illegal, irrespective of any unjust discrimination that might result therefrom.
I concur, too, in the opinion of the majority of the court that Ar-buckle Bros, and the Jay Street Terminal are to be treated as identical. When two individuals form two firms in which each is interested in the same proportions, the one to refine sugar, and the other to operate a terminal station and to transport goods for railroads, the two firms do not thereby become so distinct and separate for every purpose as to legalize a payment to the latter firm for carrying the former’s product, if such payment would be illegal as unjustly discriminatory when made directly to the former firm. The Commission was therefore fully justified in this case in dealing with the two firms as one.
The question before this court then is: Could the Commission reasonably find that payment to Arbuckle Bros, for getting sugar manufactured by them from a point within the lighterage limits to Jersey City — that is, for performing a part of the railroad companies’ transportation service (a payment permitted by section 15 of the act, subject to regulation by the Commission as to its reasonableness) — would operate as an unjust discrimination against the Federal Sugar Refining Company unless a similar payment were made to the latter company for getting sugar manufactured by it from another point within the lighterage limits to Jersey City?
If the Federal Company had its refinery at Pier 24, and if Arbuckle Bros, operated their wharf only as a private and not as a public station, and if the allowance made to them for carrying their sugar to Jersey City were no more than the bare cost of the service, the Commission would be justified in finding that a refusal to make a similar allowance to the Federal Company and the offer to give it in lieu thereof free lighterage of its sugar would result in an unjust discrimination against the-Federal Company. Union Pacific Railroad Co. v. Updike Grain Co., 222 U. S. 215, 32 Sup. Ct. 39, 56 L. Ed. 171.
Do the facts, first, that the Federal Company’s refinery is at Yonkers, that it brings its goods to Pier 24 primarily or solely to get them within-the lighterage limits, that it has never demanded and does not want free lighterage from Pier 24, and that as a result thereof the transportation of its goods by the railroads begins in Jersey City, or, second, that Arbuckle Bros, are employed by the carriers to operate their wharf as a public terminal station, and to transport therefrom to Jersey City not only their own, but others’, goods, necessarily render the circumstances such that the Commission in the reasonable exercise of its powers could not find them to be substantially similar?
(1) If this case were based on the grant of free lighterage to Ar-buckle Bros, and the failure to grant it to the Federal Company, the latter would, of course, have no ground for complaint, unless it really wanted and offered to avail itself of such free lighterage. But when, as here, the complaint is based on the grant to the one and the denial *795to the other of the privilege, not of free lighterage, but of itself performing for compensation the transportation service from within the lighterage limits to Jersey City, it is no answer to assert that at present the situation of the two parties is not similar; transportation for the one beginning at New York and for the other at Jersey City. The charge is that this dissimilarity is due, not to the voluntary act of the parties, but to the very discrimination sought to be removed as unjust, and that if the same privilege were granted the Federal Company as is granted Arbuckle Bros. — that is, to transport its goods from a point in the lighterage limits to J ersey City in its own or hired lighters, not at its cost, but as the compensated agent of the railroads — it would be ready, willing, and able so to do.
If this court must find that there is no substantial basis for the Commission’s view that the Federal Company was shipping, and, on a grant of like privileges to those accorded Arbuckle Bros., would be ready to ship from Pier 24, if the facts stated in the petition necessarily lead to the conclusion that the shipment is and would be direct from Yonkers, a point without, and not from Pier 24, a point within, the lighterage limits, to Jersey City, there would be an end of the case. I am of the opinion, however, that this court should not so hold.
The railroads are not concerned with the history of goods offered for transportation. Interstate Commerce Commission v. D., L. & W. R. Co., 220 U. S. 235, 31 Sup. Ct. 392, 55 L. Ed. 448. If parties are ready to perform for compensation that part of the service which the railroad companies, by their offer to begin the carriage in New York, instead of in New Jersey, have made transportation service, it cannot be material to the railroads how the goods get to the point where this service is to begin — whether it be by rail, barge, or wagon. The goods are to be tendered to them at that point. The only transportation with which we are here concerned, that by the railroads, is to begin there.
The barge that brings the Federal Company’s sugar from Yonkers is tied up to the dock at Pier 24. The sugar is then just as much within the lighterage limits as if it were dumped out on the pier. When the barge is so tied up, a shipper who wants to avail himself of the free lighterage offer could assuredly do so. The railroads make this offer to the Federal Company now, an offer which would be illegal if the goods could not be considered to be within the lighterage limits, and if the interstate transportation necessarily began at Yonkers. If the refinery were situated in New York City, a few blocks off the water front, on a small canal or creek large enough only for rowboats, the company clearly could bring' its goods by such a boat to the dock and put them oil lighters, without first dumping them onto the dock.
Of course, at the present time, the Federal Company cannot offer the goods to the railroads at Pier 24. As it does not want free light-erage, and as the railroads will not accept them at Pier 24 by issuing, through regular agents, or through the federal Company itself, acting as their agent, the necessary bills of lading, and permitting the Federal Company as their paid agent thence to transport them to Jersey City under covenants similar to those found in the Jay Street Terminal *796contracts, it would seem to be utterly useless for the Federal Company to do anything more than it is doing. It says:
“Our sugar is at Pier 24. It is already loaded in lighters. We want bills of lading for the through transportation from this point, and we demand, for similar compensation, the privilege of performing a part of the transportation service, that between the lighterage point, Pier 24, and Jersey Oity, a privilege substantially similar to that which you grant Arbuekle Bros.”
In the opinion filed by the Commission in the original case brought by the Federal Company, involving only the extension of the lighter-age limits and based primarily on an alleged violation of section 3 of the act, importance was attached to the concession of counsel that the Federal Company would not be any better off if the Jay Street terminal were owned by the railroad companies, with the implication that in that event the allowance would be cut off and only free lighterage granted. The refinery at Yonkers would, of course, always be under the disadvantage of haying to bring its goods to Pier 24.
The present proceeding, however, was brought by the Federal Company, not in the capacity of a Yonkers refinery, primarily to prevent, as between localities, the undue prejudice forbidden by section 3, but in its capacity of a vendor and shipper of sugar from Pier 24, primarily to prevent as against it the unjust discrimination forbidden by section 2 of the act. Only in that capacity is it to be dealt with in this case, and therefore it is immaterial how, whence, or at what cost it gets its sugar to that pier.
(2) Can parties guilty of what would otherwise be an unjust discrimination escape the consequences of their act by combining the payment for the transportation service with payment for other work that in and of itself has no necessary connection therewith?
That Arbuekle Bros, run a public wharf as agents of the railroad companies, that their compensation is a combination of rent and wages as terminal managers and transporters, that the amount paid per 100 pounds for sugar may be far beyond a fair payment for that particular service, and may be made so because a similar payment per 100 pounds may be fat below affair payment for similar services as to other goods, do not, in my judgment, necessarily render the circumstances surrounding the transportation of the sugar to Jersey City so dissimilar from those at Pier 24 as to justify this court in holding that the Commission, in the reasonable exercise of its powers, could not find that an unjust discrimination resulted from the payment to Arbuekle Bros, and the refusal to make a similar payment to the Federal Company. If the Commission could reasonably so find, its order cannot be annulled merely because the members of this court might have reached a different conclusion, had they been acting as commissioners.
The fact that the contracts between the Jay Street Terminal and the railroads, by which the Arbuekle private docks were made public terminal stations and these allowances were definitely fixed, were made during the session of Congress which enacted the Hepburn Act (Act June 29, 1906, c.. 3591, 34 Stat. 584 [U. S. Comp. St. Supp. 1911, p. 1284]”), a law which aimed more effectively to prevent certain illegal practices theretofore secretly indulged in for the benefit of large and *797favored shippers, and the further, fact that the ultimate destination of the goods determined the rate of payment, although the services in each case were absolutely identical, lends support to the conclusions of the Commission that the allowances are a mere disguise to conceal unjustly discriminatory and therefore illegal payments.
In my judgment, the petition should be dismissed for want of equity.