dissenting:
Sec. 2 of the Act makes it unlawful for any common carrier “by any special rate, rebate, drawback, or other device” to receive from any person “a greater or less compensation for any service rendered” in the “transportation” of passengers or property than it receives from any other pérson for doing for him “a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions.” Loading is clearly a “service rendered” in the “transportation” of property1 within the meaning of § 2. See Merchants Warehouse Co. v. United States, 283 U. S. 501. The practice which is now held to be free from the charge of unlawful discrimination under § 2 is the practice of loading cotton free for certain shippers who ship to one destination and exacting a loading charge from others who ship from the same points but to a different destination. That is to say, free loading of cotton is allowed shippers who ship cotton from Oklahoma to the *15Texas Gulf ports; a loading charge2 is required from those who ship cotton from the identical places in Oklahoma to the Southeast.
The Commission in its report justified that discrimination on the following considerations: (1) there is no trucking of cotton between points in Oklahoma and the Southeast, while there is considerable truck competition in the movement of cotton from Oklahoma to the Texas Gulf ports; (2) carload rates on cotton from Oklahoma to the Southeast are on a relatively lower basis than carload rates from the same origins to the Texas Gulf ports; and (3) rates from points in Oklahoma both to the Southeast and to the Texas Gulf ports are depressed. The Commission in its report made no specific reference to § 2. It now seeks to sustain its order on the ground that the conditions surrounding the respective line-hauls justified the carriers in absorbing the loading charge in the line-haul rates for one shipper but not for another. It endeavors to avoid the issue of discrimination by contending that § 2 as a matter of law has no application to the present situation. Its argument is that § 2 does not apply where the line-hauls are not over the same line, for the same distance, and to the same destination. That contention is based on Wight v. United States, 167 U. S. 512, which the Commission claims to have followed consistently.3
*16I disagree with that construction, of § 2. The Wight case involved a rebate by one road of a part of the rate between Cincinnati and Pittsburgh and was made on account of drayage at the Pittsburgh end. The Court held that § 2 was violated, saying that that section “prohibits any rebate or other device by which two shippers, shipping over the same line, the same distance, under the same circumstances of carriage, are compelled to pay different prices therefor.” 167 U. S. p. 518. It does not follow that § 2 applies only where those identical conditions exist. Thus in Birkett Mills v. Delaware, L. & W. R. Co., 123 I. C. C. 63, the Commission had before it a complaint of millers, grain dealers, and elevator companies in New York respecting different transit charges on ex-lake and all-rail traffic, the transit charges being separately established. It held that “as the differing transit charges are for the same transit services at the same points by the same carriers, unjust discrimination under section 2 of the act exists.” p. 65. No reference was made to line-haul conditions, though the relation between transit privileges and rate structures is intimate. Atchison, T. & S. F. Ry. Co. v. United States, 279 U. S. 768; Board of Trade v. United States, 314 U. S. 534. And the principles of the Birkett Mills case have been applied by the Commission to other situations where the haul was not over the same line, for the same distance, and to the same destination. Suffern Grain Co. v. Illinois Central R. Co., 22 I. C. C. 178, 183-184; Washington, D. C., Store-Door Delivery, 27 I. C. C. 347.
It was stated in Interstate Commerce Commission v. Baltimore & Ohio R. Co., 145 U. S. 263, 284, that “any fact which produces an inequality of condition and a change of circumstances justifies an inequality of charge.” Those inequalities of conditions may relate to the circumstances of carriage. But the fact that different rates for carriage are warranted does not necessarily mean that dif*17ferent rates for identical accessorial services in connection with the carriage are justified. The Court stated in Merchants Warehouse Co. v. United States, supra, p. 511, that “Section 2 forbids the carrier to discriminate by way of allowances for transportation services given to one, in connection with the delivery of freight at his place of business, which it denies to another in like situation.” And see Baltimore & Ohio R. Co. v. United States, 305 U. S. 507, 524. By the same token, there is a forbidden discrimination, in case of an accessorial service such as loading, where different rates are charged different shippers though the physical services rendered during the loading are alike.
But it is said in reply that there is nothing in § 2 which limits the phrase “under substantially similar circumstances and conditions” to the circumstances surrounding the particular accessorial service in question; and that it is a factual issue for the informed judgment of the Commission whether line-haul conditions are to be considered in determining the validity of separate charges for services such as loading. The answer, however, seems clear. The service of loading, like the transit service in the Birkett Mills case, is identical whether the property is going south or southeast, whether its journey is long or short, whether it is transported by one carrier or another. A carrier which is loading in Oklahoma one car of cotton for a southeastern mill and another car of cotton for a Gulf port is certainly performing a “like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions.” A carrier which is loading two cars at the same time, on the same siding, with the same commodity is indeed performing the same service under the same circumstances and conditions. To charge the first shipper for loading his car and to load the other one free would be to impair the rule of equality which § 2 was designed *18to inaugurate. Interstate Commerce Commission v. Delaware, L. & W. R. Co., 220 U. S. 235; Louisville & Nashville R. Co. v. United States, 282 U. S. 740, 749-750. The result in the present case is a gross discrimination against shippers to the Southeast.4
There may be cases of special charges for special services where the validity of the rate under § 2 is dependent on whether the line-haul conditions are the same.5 Yet § 2, though primarily related to the line-haul, is not restricted to it. Merchants Warehouse Co. v. United States, supra. At least where the service in question is purely accessorial, § 2 is applicable though the line-hauls are not over the same line, for the same distance and to the same destination. Where § 2 is applicable, competitive factors (such as those on which the Commission relied) are no justification for the discrimination. Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 17. S. 144, 166; Interstate Commerce Commissions. Baltimore & Ohio R. Co., 225 U. S. 326, 342; Seaboard Air Line Ry. Co. v. United States, 254 U. S. 57, 62; Absorption of Loading Charge, 161 I. C. C. 389, 391; Allowance for Driving Horses, 227 I. C. C. 387, 389. The justification under § 2 for “unequal rates must rest in the facts of carriage and not in the financial interests of the carrier.” Sharfman, The Interstate Commerce Commission, Pt. 3, Vol. B, p. 371.
There are, of course, occasions when a consideration of the line-haul rate in relation to the charge for an accessorial *19service is proper. That is the case where a rate has been challenged under § 1 (5) (a) as not being “just and reasonable.” In that event it is wholly proper to determine whether elements of cost not provided in the separate rate are in fact included in the line-haul rate. Atchison, T. & S. F. Ry. Co. v. United States, 232 U. S. 199, 219-220; Perishable Freight Investigation, 56 I. C. C. 449, 461-465; Alton & Southern R. Co. v. United States, 49 F. 2d 414, 417-428. But the issues framed by § 1 (5) (a) are larger than the more limited ones under § 2. And though the rate is just and reasonable under § 1, it may nevertheless create an unjust discrimination under § 2. Interstate Commerce Commission v. Baltimore & Ohio R. Co., 145 U. S. 263, 277; American Express Co. v. Caldwell, 244 U. S. 617, 624; United States v. Illinois Central R. Co., 263 U. S. 515, 524.
But it is said that the loading charge is a component part of the total line-haul charge; that competitive conditions would justify a reduction in the line-haul tariff; and that a shipper is affected no more by an increase or decrease in one than in the other. It is therefore argued that changes in the charge for this accessorial service may be treated the same as if the line-haul tariff were in issue. That argument, however, results in this: an adjustment in charges for accessorial services such as loading is utilized as an indirect method of adjusting line-haiil rates. That is not permitted under this statutory system. Although charges for services such as loading are a part of the total line-haul charge, they must be separately stated in the tariffs. § 6 (1); Rule 10 (a), supra, note 2. This proceeding put in issue not the line-haul tariff but the separately stated charge for loading, since the amended tariff made no change in the former. To allow this proceeding to be used to adjust indirectly the line-haul tariff is to circumvent the Act. The difference between the removal of a discrimination and the adjustment or fixing of rates *20has long been recognized. St. Louis S. W. Ry. Co. v. United States, 245 U. S. 136, 145. The present line-haul rate is a through or joint rate in which carriers other than-the appellee roads participate. Those other carriers are not parties to this proceeding; nor does it appear that they have consented to any adjustment of the line-haul rates. Congress has prescribed in § 15 (3) how those rates may be adjusted. It may be done only after a “full hearing,” which means that all other carriers who are parties to the tariff must be joined. Stevens Grocer Co. v. St. Louis, I. M. & S. Ry. Co., 42 I. C. C. 396, 398; McDavitt Bros. v. St. Louis, B. & M. Ry. Co., 43 I. C. C. 695; United States v. Abilene & So. Ry. Co., 265 U. S. 274, 283, note 6; Rules of Practice (I. C. C. 1936), Rule II (c) and (d). And the Commission may then adjust the through rates or joint rates either with or without the consent of the carriers. St. Louis S. W. Ry. Co. v. United States, supra. On the other hand, the loading charge, like the transit privilege involved in Central R. Co. v. United States, 257 U. S. 247, 255, 259, is a tariff for which other carriers participating in the through or joint rates are not necessarily responsible. In short, Congress has prescribed the procedure for obtaining adjustments of line-haul rates. That method is different from the one provided for adjusting a separate tariff of the kind we have here. We should not allow the procedure for readjusting line-haul rates to be circumvented through the rebate route. Cf. Central R. Co. v. United States, supra.
The determination by the Commission on the question of discrimination under § 2 is ordinarily a question of fact. Nashville, C. & St. L. Ry. Co. v. Tennessee, 262 U. S. 318, 322. Its findings on that issue are entitled to great weight (Seaboard Air Line Ry. Co. v. United States, supra) and will be given the respect which expert judgment on the intricacies of rate structures deserves. But disregard of the statutory standards is another matter. Central R. Co. v. United States, supra.
*21Since I would rest the reversal of the judgment below on § 2, it is not necessary for me to reach the issues raised under § 3.
Me. Justice Roberts, Mr. Justice Black and Mr. Justice Reed join in this dissent.Sec. 1 (3) (a) defines “transportation” so as to include “all services in connection with the receipt, delivery . . . and handling of property transported.”
The loading charge is 5.50. per square bale of cotton and 2.750 per round bale. This loading rate is carried separately in the tariffs as is required by § 6 (1) of the Act. See Tariff Circular 20 (I. C. C. 1933), Rule 10 (a).
Richmond Chamber of Commerce v. Seaboard Air Line Railway, 44 I. C. C. 455, 464-466; Pacific Lumber Co. v. N. W. P. R. Co., 51 I. C. C. 738, 760; Tide Water Oil Co. v. Director General, 62 I. C. C. 226, 227; Standard Oil Co. v. Director General, 87 I. C. C. 214; Bunker Hill & Sullivan M. & C. Co. v. N. P. Ry. Co., 129 I. C. C. 242, 246; Cane Sugar from Wisconsin to Minnesota, 203 I. C. C. 373, 376; Miller Waste Mills, Inc. v. Chicago, M., St. P. & P. R. Co., 226 I. C. C. 451, 453.
None of the carriers to the Southeast serves the Gulf ports. Appellee carriers have only a short part of the line-haul on cotton from OHahoma to the Southeast.
The Commission apparently has so treated the problem of absorption of switching charges. See Tide Water Oil Co. v. Director General, 62 I. C. C. 226; Restriction of Kansas City Switching District, 146 I. C. C. 438, 440. And see Seaboard Air Line Ry. Co. v. United States, 254 U. S. 57. Cf. United States v. American Tin Plate Co., 301 U. S. 402.