DAVIS, Circuit Judge.
The Pennsylvania Railroad Company filed its petition, praying that the orders of the Interstate Commerce Commission, made on August 11, 1922, and September 6, -1922, against it and the Western Maryland Railroad, be suspended until final hearing and determination. These orders were entered at the suit of the Manufacturers’ Association of York, Pa., wherein it sought to have the practices for the interchange of traffic between the Pennsylvania Railroad and the Western Maryland Railroad, within a certain zone in York, extended throughout the entire city by those two railroads and the Maryland & Pennsylvania Railroad. The tracks of the Pennsylvania and the Western Maryland approach each other at Codorus creek and run parallel through the city westwardly for about 1% miles.
The Pennsylvania Railroad, which serves York, is a consolidation of various roads built between 1838 and 1876. The predecessors of the Western Maryland entered York in 1893, and that portion of its [525]*525tracks which runs through the city adjacent to the tracks of the Pennsylvania crossed the Pennsylvania’s plant tracks, which connected it with various industries on the northern side of 'the road and severed them from it. The Western Maryland, therefore, entered into contracts with those industries by which it agreed to preserve their ability to receive and deliver freight from and to the Pennsylvania. A contract was entered into also between the Pennsylvania and the Western • Maryland by which “each line would receive from and deliver to the other at the nearest convenient point of connection loaded and empty cars for the purpose of delivering or receiving traffic to and from points in the city of York accessible to one carrier, but not to the other,” within the territory described as being west of Beaver street, where the Hanover & York Railway, now Pennsylvania, connected with its present Harrisburg-Baltimore line. The charge for this service was not to exceed actual cost.
A practice grew up between these two companies, which was not in strict accordance with the contract, whereby each company receives and delivers freight from and to .industries located on the tracks of the other company, just as though the tracks of both companies were common property, without either company making a charge to the other for the use of its tracks. This practice is confined to industries located on the tracks of these two companies within the zone between Codorus creek and West Market street, and is not extended westward, beyond West Market street, to industries outside of this zone, although the tracks of the two companies run side by side for some distance beyond the zone. At the time the contract was entered into by these companies, and the practice was started, the zone doubtless included all the industries that were then located on their parallel tracks. “There is no continuity of rails between the Maryland & Pennsylvania and the Western Maryland except over the line of the Pennsylvania Railroad.” The situation with regard to the industries in York is clearly set forth in the opinion of the Interstate Commerce Commission:
“There are about 300 industries of various kinds at York. More than 100 have spur tracks connecting them with one or more carriers. There are 17 industries within the zone; of these 8 connect with the Western Maryland, 7 with the Pennsylvania, and 2 with both lineé. East and west of the zone, where the railroads diverge, are 8 industries, with industry tracks leading to both the Pennsylvania and Western Maryland. Also outside the zone 46 industries are reached exclusively by the various lines of the Pennsylvania, 27 by the Maryland & Pennsylvania, and 5 by the Western Maryland. During an average month the inbound and outbound traffic of the Pennsylvania and that handled in connection with the Maryland & Pennsylvania amounted to 107,613 tons, and that of the Western Maryland to 23,427 tons. If reciprocal switching were established, 86,000 tons of this traffic now controlled by the Pennsylvania would be open to the competition of the Western Maryland, and 6,696 controlled by the latter would be open to the competition of the Pennsylvania.^
The interchange of traffic between the two companies from industries located without the zone is not made at York, but at Hanover, some 19 miles distant from York. Consequently, if an industry, located on the Western Maryland not within the zone, desires to ship freight to some other part of York located on the Pennsylvania Railroad, that freight [526]*526is taken by the Western Maryland to Hanover, and there transferred to the Pennsylvania, and by it brought back to its destination in York. This practice, it is claimed, results in hardship and commercial disadvantage to industries located on the parallel tracks of either company outside the zone, and gives to the industries located in the zone an undue and unreasonable preference arid advantage over industries similarly situated on the parallel tracks outside of the zone. It cannot be denied that this practice is a great commercial advantage to those industries located in the zone over those outside of the zone. The Pennsylvania, which is bearing the burden of this litigation, objects to extending the practice, because it would open its freight to the other companies, and would result in loss and disadvantage to it, because it controls a larger proportion of the freight in York than do the other two companies. The Commission ordered that:
“Said defendants be, and they are hereby, notified and required to cease and desist, on or before November 6, 1922, and thereafter to abstain from, practicing the undue prejudice found in said report to exist.”
[1] The petitioner is not questioning any administrative finding of the Commission that “a given prejudice or discrimination is undue or unjust.” Such finding relates to an administrative question of fact, and is not reviewable here. It relies upon the principle of law that no prejudice, preference, or discrimination prohibited by the act can result from the possession, extension, or acquisition of trackage facilities by one carrier over the tracks of another.
[2] Under section 3 of the Act of 1887 to Regulate Commerce (Comp. St. § 8565), it was provided that it should be unlawful for any common carrier subject to the act to give any undue or unreasonable preference or advantage to any person, company, firm, or locality, or to subject any particular person, company, firm, or locality to any undue or unreasonable disadvantage in any respect whatsoever. It also provided that every common carrier subject to the act should according to their respective powers afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and to those connecting therewith, and should not discriminate in their rates and charges between such connecting lines. It further provided that these provisions “shall not be construed as requiring any such commón carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business.” The Transportation Act of 1920, however, provided that:
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DAVIS, Circuit Judge.
The Pennsylvania Railroad Company filed its petition, praying that the orders of the Interstate Commerce Commission, made on August 11, 1922, and September 6, -1922, against it and the Western Maryland Railroad, be suspended until final hearing and determination. These orders were entered at the suit of the Manufacturers’ Association of York, Pa., wherein it sought to have the practices for the interchange of traffic between the Pennsylvania Railroad and the Western Maryland Railroad, within a certain zone in York, extended throughout the entire city by those two railroads and the Maryland & Pennsylvania Railroad. The tracks of the Pennsylvania and the Western Maryland approach each other at Codorus creek and run parallel through the city westwardly for about 1% miles.
The Pennsylvania Railroad, which serves York, is a consolidation of various roads built between 1838 and 1876. The predecessors of the Western Maryland entered York in 1893, and that portion of its [525]*525tracks which runs through the city adjacent to the tracks of the Pennsylvania crossed the Pennsylvania’s plant tracks, which connected it with various industries on the northern side of 'the road and severed them from it. The Western Maryland, therefore, entered into contracts with those industries by which it agreed to preserve their ability to receive and deliver freight from and to the Pennsylvania. A contract was entered into also between the Pennsylvania and the Western • Maryland by which “each line would receive from and deliver to the other at the nearest convenient point of connection loaded and empty cars for the purpose of delivering or receiving traffic to and from points in the city of York accessible to one carrier, but not to the other,” within the territory described as being west of Beaver street, where the Hanover & York Railway, now Pennsylvania, connected with its present Harrisburg-Baltimore line. The charge for this service was not to exceed actual cost.
A practice grew up between these two companies, which was not in strict accordance with the contract, whereby each company receives and delivers freight from and to .industries located on the tracks of the other company, just as though the tracks of both companies were common property, without either company making a charge to the other for the use of its tracks. This practice is confined to industries located on the tracks of these two companies within the zone between Codorus creek and West Market street, and is not extended westward, beyond West Market street, to industries outside of this zone, although the tracks of the two companies run side by side for some distance beyond the zone. At the time the contract was entered into by these companies, and the practice was started, the zone doubtless included all the industries that were then located on their parallel tracks. “There is no continuity of rails between the Maryland & Pennsylvania and the Western Maryland except over the line of the Pennsylvania Railroad.” The situation with regard to the industries in York is clearly set forth in the opinion of the Interstate Commerce Commission:
“There are about 300 industries of various kinds at York. More than 100 have spur tracks connecting them with one or more carriers. There are 17 industries within the zone; of these 8 connect with the Western Maryland, 7 with the Pennsylvania, and 2 with both lineé. East and west of the zone, where the railroads diverge, are 8 industries, with industry tracks leading to both the Pennsylvania and Western Maryland. Also outside the zone 46 industries are reached exclusively by the various lines of the Pennsylvania, 27 by the Maryland & Pennsylvania, and 5 by the Western Maryland. During an average month the inbound and outbound traffic of the Pennsylvania and that handled in connection with the Maryland & Pennsylvania amounted to 107,613 tons, and that of the Western Maryland to 23,427 tons. If reciprocal switching were established, 86,000 tons of this traffic now controlled by the Pennsylvania would be open to the competition of the Western Maryland, and 6,696 controlled by the latter would be open to the competition of the Pennsylvania.^
The interchange of traffic between the two companies from industries located without the zone is not made at York, but at Hanover, some 19 miles distant from York. Consequently, if an industry, located on the Western Maryland not within the zone, desires to ship freight to some other part of York located on the Pennsylvania Railroad, that freight [526]*526is taken by the Western Maryland to Hanover, and there transferred to the Pennsylvania, and by it brought back to its destination in York. This practice, it is claimed, results in hardship and commercial disadvantage to industries located on the parallel tracks of either company outside the zone, and gives to the industries located in the zone an undue and unreasonable preference arid advantage over industries similarly situated on the parallel tracks outside of the zone. It cannot be denied that this practice is a great commercial advantage to those industries located in the zone over those outside of the zone. The Pennsylvania, which is bearing the burden of this litigation, objects to extending the practice, because it would open its freight to the other companies, and would result in loss and disadvantage to it, because it controls a larger proportion of the freight in York than do the other two companies. The Commission ordered that:
“Said defendants be, and they are hereby, notified and required to cease and desist, on or before November 6, 1922, and thereafter to abstain from, practicing the undue prejudice found in said report to exist.”
[1] The petitioner is not questioning any administrative finding of the Commission that “a given prejudice or discrimination is undue or unjust.” Such finding relates to an administrative question of fact, and is not reviewable here. It relies upon the principle of law that no prejudice, preference, or discrimination prohibited by the act can result from the possession, extension, or acquisition of trackage facilities by one carrier over the tracks of another.
[2] Under section 3 of the Act of 1887 to Regulate Commerce (Comp. St. § 8565), it was provided that it should be unlawful for any common carrier subject to the act to give any undue or unreasonable preference or advantage to any person, company, firm, or locality, or to subject any particular person, company, firm, or locality to any undue or unreasonable disadvantage in any respect whatsoever. It also provided that every common carrier subject to the act should according to their respective powers afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and to those connecting therewith, and should not discriminate in their rates and charges between such connecting lines. It further provided that these provisions “shall not be construed as requiring any such commón carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business.” The Transportation Act of 1920, however, provided that:
“If tbe Commission finds it to be in the public interest and to be practicable, without substantially impairing the ability of a carrier owning or entitled to the enjoyment of terminal facilities to handle its own business, it shall have power to require the use of any such terminal facilities, including main line track or tracks for a reasonable distance outside of such terminal, of any carrier, by another carrier or other carriers,” etc. Comp. St. Ann. Supp. 1923, § 8565 (4).
The Commission did not specifically state in what way the defendants were to cease and desist from practicing the undue prejudice found, whether by extending the practice to industries outside the-zone or [527]*527by stopping the practice altogether.- The Commission could have_ ordered the extension of the practice to industries outside the zone, if it had found the same to be “in the public interest and to be practicable.” But the Commission found as a fact that it had “not been shown Jo be in the public interest to require the use of the terminal facilities of the main line tracks of the Pennsylvania at York by the Western Maryland,1” and so under that finding, and so long as it stands, the Commission may not order the practice existing between the two companies within the zone extended to industries situated along the parallel tracks outside the zone. It follows, therefore, that the only way by which they can order the companies to cease and desist from practicing the undue prejudice is by abolishing those practices within the zone.
[3, 4] It has been repeatedly held that, where one company serves a community or industry located on the tracks "of another under a track-age arrangement, the situation in effect is the same as if the former company had extended its own tracks to such community or industry. Commercial Club of Superior, Wis., v. Great Northern Ry., 24 Interest. Com. Com’n R. 96; Penick & Ford v. Director General, 61 Interst. Com. Com’n R. 173; Louisville & Nashville Railroad Co. v. United States et al., 242 U. S. 60, 37 Sup. Ct. 61, 61 L. Ed. 152. The industries, therefore, located along the tracks of either company in the zone, are in law to be considered as on the individual tracks of both companies, and the industries beyond this zone as located on the trades of one of the companies only. Consequently in legal effect those industries which are within the zone and those without the zone are not similarly situated, but are in a substantially different position. And so the advantage enjoyed by the industries within the zone over those without the zone is not, within the meaning of the act, an undue or unreasonable preference. Ridge Coal Mining Co. v. Missouri Pacific R. Co., 62 Interst. Com. Com’n R. 259; Dering Mines Co. et al. v. Director General, 62 Interst. Com. Com’n R. 265; Louisville & Nashville Railroad Co. et al. v. United States et al., supra. “A carrier must use its existing facilities impartially,” and the railroads, under the facts in this case, are under no Obligation to extend or curtail their facilities. The legal position of the industries in the zone is just the same as though they were located at some other part of the city away from the tracks. An industry selecting a disadvantageous location for reasons justifiable to itself has no right to call upon carriers to overcome such disadvantage at their expense, and this is what the industries outside of the zone, so far as the legal situation is concerned, did.
It follows, therefore, that the order of the Commission was erroneous, and must be enjoined and suspended.