a discrimination against the mine from which the company buys its coal and a preference in favor of other mines, but inveighs against the expediency of the order. And this is true also of a statement in another form of the same proposition, that is, that if, when coal is bought from a mine by a railroad the road is compelled to count the cars in which the coal is moved in case of car shortage, a preference will result in favor of the mine selling coal and making delivery thereof at the tipple of the mine to a person who is able to consume it without the necessity of transporting it by rail. At best, these arguments but suggest the complexity of the subject, and the difficulty involved in making any order which may not be amenable to the criticism that it leads to or may beget some inequality. Indeed, the arguments just stated, and others of a like character which we do not deem it essential to specially refer to, but assail the wisdom of Congress in conferring upon the commission the power which has been lodged in that body to consider complaints as to violations of the statute and to correct them if found to exist, or attack as crude or inexpedient the action of the commission in performance of the administrative functions vested in it, and upon such assumption invoke the exercise of unwarranted judicial power to correct the assumed evils. It follows from what we have said that the court below erred in enjoining the order of the commission, in so far as it related to company fuel cars, and its decree is therefore reversed, and the case remanded for further proceedings in conformity with this opinion.

MR. JUSTICE BREWER dissents.

INTERSTATE COMMERCE COMMISSION v. CHICAGO

& ALTON RAILROAD COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 232. Argued October 15, 1909.-Decided January 10, 1910.

Interstate Commerce Commission v. Illinois Central Railroad Company, ante, p. 452, followed as to power, under the act to regulate commerce, of the Commission to make reasonable arrangements for the distribution of coal cars to shippers, including cars for transportation of fuel purchased by the railroad company for its own use. Where the case is submitted on bill and answer, a fact, alleged in the complaint and denied in the answer and for which proof is demanded, cannot be considered, especially where, as in this case, there is a contrary finding of a body such as the Interstate Commerce Commission.

THE facts are stated in the opinion.

Mr. Wade H. Ellis, Assistant to the Attorney General, and Mr. Luther M. Walter, Special Assistant to the Attorney General, with whom Mr. L. A. Shaver and Mr. H. B. Arnold, were on the brief, for appellant.

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.

By leave of the court, Mr. Eldon J. Cassoday and Mr. Rush C. Butler filed a brief for Receivers of the Illinois Collieries Company.

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.

This case is controlled by the opinion just announced in the case of Interstate Commerce Commission v. Illinois Central Railroad Company, ante, p. 452. The complaints made to the commission were alike in both cases, and they were heard before that body at the same time, and one report was made in both cases. The order, in both cases, was the same. Like bills for injunction were filed in the court below, and there also they were heard together and were disposed of in one opinion. There is only this difference between the two cases. In this the bill for injunction contained the following averment concerning a small number, out of the thousands of coal cars forming part of the equipment of the road:

"That your orator has purchased and now operates on its line 360 steel hopper-bottom coal cars; that said cars are of an extreme height, to wit, ten feet; that, by reason of such height, said cars can be unloaded only upon specially constructed trestles; that no consignees to whom coal is shipped from mines on your orator's line own or have the use of such trestles, and that such cars are not available for commercial shipment of coal. And your orator avers that it at all times restricts these cars to the service of hauling your orator's own fuel supply, and that by reason of such restriction and by reason of the fact that your orator alone has the means of unloading said hopper-bottom cars, said cars never constitute a part of your orator's equipment available for commercial shipments of coal."

The answer of the commission denied all knowledge of the truth of the averments thus made, and called for proof on the subject. No proof was made, and the cause was submitted to the court below on bill and answer. In view of this fact, and in consideration moreover of the weight which the law gives to the finding of the commission, as to the existence of unlawful preference and the operative effect of the order which the commission made, until set aside, we think the mere

averment of the facts referred to in no way causes this case to differ from the Illinois Central case. Of course, under these circumstances we intimate no opinion as to how far had the facts alleged as to the hopper cars been established, they would to the extent of such cars have taken this case out of the rule announced in the Illinois Central case. It follows that the judgment must be reversed and the case remanded for further proceedings in conformity to this opinion.

MR. JUSTICE BREWER dissents.

BALTIMORE & OHIO RAILROAD COMPANY v. UNITED STATES EX REL. PITCAIRN COAL COMPANY.

ERROR TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.

No. 289. Argued October 18, 19, 1909.-Decided January 10, 1910. Regulations which are primarily within the competency of the Interstate Commerce Commission are not subject to judicial supervision or enforcement until that body has been properly afforded an opportunity to exert its administrative functions. Texas & Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U. S. 426, applied, and Southern Railway Co. v. Tift, 206 U. S. 428, distinguished. The distribution to shippers of coal cars including those owned by the shippers and those used by the carrier for its own fuel is a matter involving preference and discrimination and within the competency of the Interstate Commerce Commission, and the courts cannot interfere with regulations in regard to such distribution until after action thereon by the commission.

Even if not assigned as error, this court will consider the jurisdictional question of whether there is power in the court, in view of the provisions of the act to regulate commerce, to grant the relief prayed for in regard to matters within the competency of the Interstate Commerce Commission.

Under the court review provisions of § 15 of the act to regulate com

merce as amended in 1906, the courts are limited to the question of power of the commission to make the order and cannot consider the wisdom or expediency of the order itself. Interstate Commerce Commission v. Illinois Central Railroad, ante, p. 452.

VOL. CCXV-31

Section 23 of the act to regulate commerce, although added thereto in 1889, will now be construed in the light of § 15, as amended in 1906; and the remedy of mandamus is limited to compelling the performance of duties which are either so plain as not to require a prerequisite exertion of power by the Interstate Commerce Commission, or which plainly arise from the obligatory force given by the statute to existing orders rendered by the commission within the lawful scope of its authority

Petition in mandamus by a shipper averring discrimination in distribution of coal cars by the Baltimore and Ohio Railroad dismissed because the matter had not been first submitted to the Interstate Commerce Commission.

165 Fed. Rep. 113, reversed.

THE facts are stated in the opinion.

Mr. Hugh L. Bond, with whom Mr. W. Ainsworth Parker was on the brief, for Baltimore and Ohio Railroad Company, plaintiff in error.

Mr. Edgar H. Gans, with whom Mr. Charles H. Markell was on the brief for Fairmont Coal Company et al., plaintiffs in error.

Mr. William A. Glasgow, Jr., with whom Mr. Frederick Dallam was on the brief, for defendants in error.

MR. JUSTICE WHITE delivered the opinion of the court.

To decide the merits of this cause will require us to determine the legality of the regulations of the Baltimore and Ohio Railroad Company, by which that company distributed cars to coal mines along the line of its road in case of car shortage. As an incident to this general question we would further be required to consider the relations, irrespective of its mere attributes and duties as a common carrier, of the Baltimore and Ohio Railroad with various coal mines along the line of its road and the relation with or control over some, if not all, of these coal mines by other mines or mine operators, and in