215 U. S. Argument for Receivers of the Illinois Collieries Co.

The right to use such cars is a matter separate and distinct from and not in any way dependent upon or affected by the counting or failure to count such cars. Traer, Receiver, v. C. & A. R. R. Co., 13 I. C. C. Rep. 457.

The appellees use their practice of not counting such cars as a scheme or device to give an advantage to the mine owner from whom they buy their fuel, so as to influence and govern the price of such fuel. Report of Interstate Comm. Comm. to Congress, January 25, 1907.

The railroad companies cannot justify their practice of not counting such cars on the ground that, without it, they would be compelled to pay a higher price for their coal. New Haven R. R. Co. v. Interstate Comm. Comm., 200 U. S. 361, 399; Turnpike Road Co. v. Sanford, 164 U. S. 578, 596; Union Pac. R. Co. v. Goodridge, 149 U. S. 680, Smyth v. Ames, 169 U. S. 466.

The rule or practice of counting or not counting cars has been before the court and the commission in a number of cases. Cases supra, and Coffman v. N. & W. R. Co., 109 Fed. Rep. 831.

The contract and non-contract mines are similarly situated. Logan Coal Co. v. Pennsylvania R. Co., 154 Fed. Rep. 497; Majestic Coal & Coke Co. v. Illinois Central R. R. Co., 162 Fed. Rep. 810.

Such practice is only operative during times of car shortage and by it the railroad company is enabled by reason of its failure to furnish adequate equipment to obtain a reduction in prices and to give to its contract mines an undue advantage over non-contract mines.

Such cars even when in use by the railroad company in transporting its own fuel are still a part of the equipment of the road and within the terms of the Interstate Commerce Act.

The cars are engaged in a public use for the benefit of the public and not alone of the railroad company.

The hauling of the railroad's own fuel coal constitutes a "carriage." Section 1, Interstate Commerce Act.

Such cars are used to obtain coal with which to operate engines and trains which are engaged in interstate commerce

and are therefore an indispensable and necessary part of interstate commerce itself. Johnson v. So. Pac. Ry. Co., 196 U. S. 1.

Even though such cars when transporting the railroad's fuel may not themselves be engaged in commerce, strictly speaking, the failure to count them directly affects the distribution of the remaining cars which are engaged in interstate commerce. Galveston & S. A. Ry. Co. v. Texas, 210 U. S. 217; Loewe v. Lawlor, 208 U. S. 274; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; In re Debs, 158 U. S. 564; Atlantic Coast Line v. Wharton, 207 U. S. 328; Employers' Liability Cases, 207 U. S. 463; Northern Securities Co. v. United States, 193 U. S. 197; Asbell v. Kansas, 209 U. S. 251; United States v. Wells, Fargo Express Co., 161 Fed. Rep. 606; Inter. Comm. Comm. v. Baird, 194 U. S. 25; Swift & Co. v. United States, 196 U.S. 375; Montague v. Lowry, 193 U. S. 38.

A comparison of the practice of the railroad companies, the plan proposed by the Circuit Judge and the practice provided for in the order of the commission, shows unjust discrimination in the two former methods. Ill. Cent. R. R. Co. v. Interstate Comm. Comm., p. 52, No. 502, p. 60; Traer, Receiver, v. C. & A. R. R. Co., 13 I. C. C. Rep. 451, 455, 457.

The practice of the railroad companies has a direct and immediate effect upon the distribution of cars engaged in interstate commerce and is an unjust discrimination in violation of the act to regulate commerce. Majestic Coal & Coke Co. v. Illinois Central R. Co., 162 Fed. Rep. 810; N. Y., N. H. & H. R. Co. v. Interstate Commerce Commission, 200 U. S. 361.

Mr. W. S. Kenyon and Mr. Garrard B. Winston, with whom Mr. Robert Mather, Mr. F. S. Winston and Mr. J. M. Dickinson were on the brief, for appellees:

The order of the Interstate Commerce Commission establishing a method to be pursued in the future by the appellees relative to the cars used for their own fuel supply is beyond the power of that commission.

The commission's rule of distribution is not a regulation of interstate commerce. Inter. Comm. Comm. v. Chicago G. W. Ry. Co., 209 U. S. 108; Express Cases, 117 U. S. 1; A., T. & S. F. R. R. Co. v. D. & New Orleans R. R. Co., 110 U. S. 667; Donovan v. Pennsylvania Co., 199 U. S. 279; Central Stock Yards Co. v. Louisville & Nashville Ry. Co., 192 U. S. 568; East and West India Dock Co. v. Shaw, Law Rep. 39 Ch. Div. 524; West v. London & Northwestern Ry. Co., Law. Rep. 5 C. P. 622; Tex. & Pac. Ry. Co. v. Inter. Comm. Comm., 162 U. S. 197; Inter. Comm. Comm. v. Baltimore & Ohio R. R. Co., 145 U. S. 263; Adair v. United States, 208 U. S. 161.

Section 15 of the Interstate Commerce Act does not empower the Interstate Commerce Commission to make the order enjoined. C., N. O. & Tex. Pac. Ry. Co. v. Inter. Comm. Comm., 162 U. S. 184; Inter. Comm. Comm. v. C., N. O. & T. P. Ry. Co., 167 U. S. 479.

The order is a taking of private property prohibited by the Fifth Amendment to the Constitution of the United States. Missouri Pacific Ry. Co. v. Nebraska, 164 U. S. 403.

By leave of the court, Mr. Francis I. Gowen, and Messrs. Wayne MacVeagh, McKenney and Flannery filed a brief on behalf of the Pennsylvania Railroad Company.

MR. JUSTICE WHITE delivered the opinion of the court.

Whether a duty rested upon the Illinois Central Railroad Company to obey an order made by the Interstate Commerce Commission is the question here to be decided.

On the ground that preferences were created and discriminations engendered by regulations established by the railroad company concerning the daily distribution of coal cars to mines along its line in periods when the supply of such cars was inadequate to meet the demand upon it for the movement of coal, the order in question commanded the railroad company to desist from enforcing the regulations found to be preferential, and for a future period of two years to de

liver cars to mines along its line in conformity with the rule announced by the commission.

A clearer perception of the questions to be considered will be afforded by giving a brief statement of the cause of car shortage referred to, accompanied with a mere outline of the steps generally taken by carriers to deal with the subject and the particular method applied by the Illinois Central Railroad Company prior to the date when the complaint was made against it, concerning which the order previously referred to was entered.

It is conceded in argument that bituminous coal mines, which are the character of mines here involved, must dispose of their product as soon as the coal is delivered at the surface, as it is not practicable for an operator to store such coal, and the amount that a mine will produce is therefore directly dependent upon the quantity that can be taken away day by day. As a result of this situation it is also conceded that railroads upon whose lines coal mines are situated pursue a system by which daily deliveries of cars, based upon requisitions of the respective mines, are made to such mines to permit of the removal of their available output for that day.

Notwithstanding full performance by railway carriers of the duty to have a legally sufficient supply of coal cars, it is conceded that unforeseen periods arise when a shortage of such cars to meet the demand for the transportation of coal takes place, because, among other things, a, of the wide fluctuation between the demands for the transportation of bituminous coal at different and uncertain periods; b, the large number of loaded coal cars delivered by a carrier beyond its own line for transportation over other roads consequent upon the fact that the coal produced at a particular point is normally distributed for consumption over an extensive area; and, c, because the cars thus parted with are subject to longer detentions than usually obtain in the case of shipments of other articles, owing to the fact that bituminous coal is often shipped by mining operators to distant points to be sold after

arrival, and is hence held at the terminal points awaiting sale, or because, owing to the cost of handling coal, and the difficulty of storing such coal, the car in which it is shipped is often used by the shipper or purchaser at the terminal points as a convenient means of storage or as an instrument for delivery, without the expense of breaking bulk, to other and distant points.

It is disclosed that the railroads of the United States generally, at various times, put in force regulations for the distribution of coal cars. Generally speaking, these regulations provide for fixing the capacity of coal mines in order to determine the number of cars to which each might normally be entitled to daily move its output of coal. And these regulations also provide for a method of determining the pro rata share of the cars daily allotted for distribution in times of car shortage. Neither the method by which capacity was to be ascertained nor the regulation for daily distribution upon the basis of such capacity in case of shortage was identical among the various railroad systems of the United States. The divergence, and even conflict, between those systems is illustrated by the cases of Logan Coal Co. v. Pennsylvania R. R. Co., 154 Fed. Rep. 497; United States ex rel. Pitcairn Coal Co. v. B. & O. R. R. Co., 165 Fed. Rep. 113; cases cited at pages 503 and 504 of the report of the Logan Coal Co. case, and the case of Majestic Coal & Coke Co. v. Illinois Central R. R. Co., 162 Fed. Rep. 810.

In a general sense, however, all the regulations of the various railroads, either for ascertaining the capacity of coal mines or in order to determine the pro rata share for daily distribution of cars to the respective mines in case of shortage dealt with four classes of cars: 1, system cars, that is, cars owned by the carrier and in use for the transportation of coal; 2, company fuel cars, that is, cars belonging to the company and used by it when necessary for the movement of coal from the mines on its own line, and which coal had been bought by the carrier and was used solely for its own fuel purposes; 3, private cars, that is, cars either owned by coal mining companies or shippers or