PRITCHARD, Circuit Judge.
At certain points south of Richmond the Seaboard Air Fine Railway Company, the Southern Railway Company, and the Atlantic Coast Fine Railroad Company are competitors, for traffic to and from that city. Each of these roads has switching facilities at Richmond connecting with the other. Each of them delivers traffic from competitive points to industries on its own tracks in Richmond at its tariff rate to Richmond, without extra charge for switching. Each of them charge, however, for carload freight received from a competitor from a competing point to he delivered to an industry on its own rails. To equalize the advantage which each has over the other as to industries on its own tracks, each of these roads absorbs the switching charge of its competitor on freight to be hauled by it to industries on its comiretitors’ tracks.
Stating the matter more concretely, and taking Oxford, N. C., as a competitive point, the Seaboard Air Fine delivers freight from that city to industries on its own rails without extra charge beyond its tariff to Richmond. Eor freight consigned over the Seaboard for industries located oh the rails of the Southern or Coast Fine, the Seaboard absorbs the switching charge of the Southern or Coast Fine, so that the cost to the shipper is the same as if he had shipped over the Southern or Coast Fine to the industry on that line. The same rules are applied to shipments from industries located on the several switches to competitive points.
The Chesapeake & Ohio Railroad Company and the Richmond, Fredericksburg & Potomac Railroad Company have switching facilities connecting with the other roads above named, but they are not competitors for the Southern business to and from Richmond. Basing the difference entirely on this absence of competition, the Seaboard, Southern, and Coast Fine do not absorb the switching charges on any freight to he delivered to industries on the switches of the Chesapeake & Ohio and the Richmond, Fredericksburg & Potomac.
[1] Under a complaint of the Richmond Chamber of Commerce the Interstate Commerce Commission decided, three of the commissioners dissenting, that this method of business of the Seaboard, Southern, and Atlantic Coast Fine was an unlawful discrimination against the industries on the Chesapeake & Ohio and the Richmond, Fredericksburg, & Potomac, under section 2 of the Interstate Commerce Act. The finding of the Commission is now before this court for review, under a petition filed by the Seaboard Air Fine Railway Company, the Atlantic Coast Fine Railroad Company, and the Southern Railway Company.
In addition to what we have said, the Commission, in pursuance of the principles underlying Wight v. United States, 167 U. S. 512, 17 Sup. Ct. 822, 42 L. Ed. 258, and I. C. C. v. Alabama Midland Ry. Co., 168 U. S. 144, 18 Sup. Ct. 45, 42 L. Ed. 414, found:
“That the practice of the Southern lines of absorbing switching charges only when the switching line actually competes with the line haul carrier on traffic to or from industries at Richmond under substantially similar circumstances and conditions as defined in section 2 is unlawful.”
[370]*370Section 2 of what is known as the Act to Regulate Commerce (24 Stat. 379) is in the following language:
“That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful.”
The first question arising in this case is as to whether the industries situated on the following railroads: Richmond, Fredericksburg &vPotomac, Seaboard Air Line, Atlantic Coast Line, Chesapeake & Ohio, and Southern — are to be treated as a unit; that is, a group of industries, engaged in doing business at Richmond? If they are, then we think the solution of this problem becomes comparatively easy. All the shipments in question are billed to and received at Richmond, and are therefore similarly situated. It was obviously the intention of Congress, in the enactment of section 2, above quoted, to secure precisely the same kind of treatment for all industries that are similarly situated. We think that the cases of Wight v. United States, supra, and I. C. C. v. Alabama Midland Railroad Co., supra, are decisive of the points involved in this question. The Commission in reaching the conclusion that the defendant carriers were liable under section 2, and in discussing this phase of the question, among other things, said:
“If absorption practices are to be uniform, as defendants contend they should be, and if they are to be based upon a definite principle, there is no reason why that principle should not be uniformly applied. At Richmond a certain theory is employed because the Southern lines have agreed to employ it; at other cities an entirely different theory exists, not because of any difference in the matter of carriage, but because such different theory best suits the carriers serving those points. In other words, the Southern lines would apply the restricted theory wherever they can, and would conform to a different practice at places whose policy they cannot seriously influence. At Richmond, most of the competition experienced by the Southern lines is with each other, little coming from either the Chesapeake & Ohio or the Richmond, Fredericksburg i& Potomac. If, therefore, they intentionally or accidentally agree upon a uniform absorption practice, there is no other carrier competition to prevent its execution.
“If it be true that absorption must be governed entirely by competitive influences, it may well be argued that only that competition which is compelling should be recognized. All of these defendants contend that absorption is compelled when there is competition with the switching lines, but the Southern carriers insist that this is the only competition which is compelling. If the shipment originate at a point common to all of the Southern lines, destined to an industry in Richmond on the tracks of the Chesapeake & Ohio, the traffic is certainly competitive to Richmond, but, because the Chesapeake & Ohio is not a competitor, the switching charge of that line is not absorbed. In other words, such traffic ceases to be competitive upon its arrival at Richmond. If the same car were destined to an industry on the rails of the Seaboard Air Line, the switching charge of that carrier would be absorbed by the Atlantic Coast Line or the Southern Railway, and such industry would have [371]*371an advantage over the Chesapeake & Ohio industry to the extent of the absorption. In the one case the shipper or consignee would pay only the Richmond rate; in the other, he would pay the Richmond rate plus the switching charge.
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PRITCHARD, Circuit Judge.
At certain points south of Richmond the Seaboard Air Fine Railway Company, the Southern Railway Company, and the Atlantic Coast Fine Railroad Company are competitors, for traffic to and from that city. Each of these roads has switching facilities at Richmond connecting with the other. Each of them delivers traffic from competitive points to industries on its own tracks in Richmond at its tariff rate to Richmond, without extra charge for switching. Each of them charge, however, for carload freight received from a competitor from a competing point to he delivered to an industry on its own rails. To equalize the advantage which each has over the other as to industries on its own tracks, each of these roads absorbs the switching charge of its competitor on freight to be hauled by it to industries on its comiretitors’ tracks.
Stating the matter more concretely, and taking Oxford, N. C., as a competitive point, the Seaboard Air Fine delivers freight from that city to industries on its own rails without extra charge beyond its tariff to Richmond. Eor freight consigned over the Seaboard for industries located oh the rails of the Southern or Coast Fine, the Seaboard absorbs the switching charge of the Southern or Coast Fine, so that the cost to the shipper is the same as if he had shipped over the Southern or Coast Fine to the industry on that line. The same rules are applied to shipments from industries located on the several switches to competitive points.
The Chesapeake & Ohio Railroad Company and the Richmond, Fredericksburg & Potomac Railroad Company have switching facilities connecting with the other roads above named, but they are not competitors for the Southern business to and from Richmond. Basing the difference entirely on this absence of competition, the Seaboard, Southern, and Coast Fine do not absorb the switching charges on any freight to he delivered to industries on the switches of the Chesapeake & Ohio and the Richmond, Fredericksburg & Potomac.
[1] Under a complaint of the Richmond Chamber of Commerce the Interstate Commerce Commission decided, three of the commissioners dissenting, that this method of business of the Seaboard, Southern, and Atlantic Coast Fine was an unlawful discrimination against the industries on the Chesapeake & Ohio and the Richmond, Fredericksburg, & Potomac, under section 2 of the Interstate Commerce Act. The finding of the Commission is now before this court for review, under a petition filed by the Seaboard Air Fine Railway Company, the Atlantic Coast Fine Railroad Company, and the Southern Railway Company.
In addition to what we have said, the Commission, in pursuance of the principles underlying Wight v. United States, 167 U. S. 512, 17 Sup. Ct. 822, 42 L. Ed. 258, and I. C. C. v. Alabama Midland Ry. Co., 168 U. S. 144, 18 Sup. Ct. 45, 42 L. Ed. 414, found:
“That the practice of the Southern lines of absorbing switching charges only when the switching line actually competes with the line haul carrier on traffic to or from industries at Richmond under substantially similar circumstances and conditions as defined in section 2 is unlawful.”
[370]*370Section 2 of what is known as the Act to Regulate Commerce (24 Stat. 379) is in the following language:
“That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful.”
The first question arising in this case is as to whether the industries situated on the following railroads: Richmond, Fredericksburg &vPotomac, Seaboard Air Line, Atlantic Coast Line, Chesapeake & Ohio, and Southern — are to be treated as a unit; that is, a group of industries, engaged in doing business at Richmond? If they are, then we think the solution of this problem becomes comparatively easy. All the shipments in question are billed to and received at Richmond, and are therefore similarly situated. It was obviously the intention of Congress, in the enactment of section 2, above quoted, to secure precisely the same kind of treatment for all industries that are similarly situated. We think that the cases of Wight v. United States, supra, and I. C. C. v. Alabama Midland Railroad Co., supra, are decisive of the points involved in this question. The Commission in reaching the conclusion that the defendant carriers were liable under section 2, and in discussing this phase of the question, among other things, said:
“If absorption practices are to be uniform, as defendants contend they should be, and if they are to be based upon a definite principle, there is no reason why that principle should not be uniformly applied. At Richmond a certain theory is employed because the Southern lines have agreed to employ it; at other cities an entirely different theory exists, not because of any difference in the matter of carriage, but because such different theory best suits the carriers serving those points. In other words, the Southern lines would apply the restricted theory wherever they can, and would conform to a different practice at places whose policy they cannot seriously influence. At Richmond, most of the competition experienced by the Southern lines is with each other, little coming from either the Chesapeake & Ohio or the Richmond, Fredericksburg i& Potomac. If, therefore, they intentionally or accidentally agree upon a uniform absorption practice, there is no other carrier competition to prevent its execution.
“If it be true that absorption must be governed entirely by competitive influences, it may well be argued that only that competition which is compelling should be recognized. All of these defendants contend that absorption is compelled when there is competition with the switching lines, but the Southern carriers insist that this is the only competition which is compelling. If the shipment originate at a point common to all of the Southern lines, destined to an industry in Richmond on the tracks of the Chesapeake & Ohio, the traffic is certainly competitive to Richmond, but, because the Chesapeake & Ohio is not a competitor, the switching charge of that line is not absorbed. In other words, such traffic ceases to be competitive upon its arrival at Richmond. If the same car were destined to an industry on the rails of the Seaboard Air Line, the switching charge of that carrier would be absorbed by the Atlantic Coast Line or the Southern Railway, and such industry would have [371]*371an advantage over the Chesapeake & Ohio industry to the extent of the absorption. In the one case the shipper or consignee would pay only the Richmond rate; in the other, he would pay the Richmond rate plus the switching charge. The only justification offered for this advantage is that the Seaboard Air Line, Atlantic Coast Line, and Southern are rival roads, and ihat the transportation is therefore not performed under circumstances and conditions substantially similar to those attendant upon the transportation to the Chesapeake & Ohio industry. But the Supreme Court has said that ‘the phrase under substantially similar circumstances and conditions, as used in the second section, refers to the matter of carriage and does not include competition between rival roads.’ Wight v. U. S., 167 U. S. 512, 17 Sup. Ct. 822, 42 L. Ed. 258; I. C. C. v. Alabama Midland Ry. Co., 168 U. S. 144, 18 Sup. Ct 45, 42 L. Ed. 414. In cases where the traffic moves from the same points of origin, and the switching charge is absorbed in the one ease and not in the other, there is a violation of section 2, as the existence of competition in the one case and not in the other clearly does not constitute' a substantial dissimilarity of circumstances and conditions. Even, however, in the case of traffic which moves from different points of origin, and where it may be that section 3 alone applies we do not think the competitive conditions relied upon are sufficient to constitute a substantial dissimilarity of circumstances and conditions within the meaning of that section. Traffic Bureau of Nashville v. L. & N. R. R. Co., 28 Interst. Com. Com’n R. 533. * * *
“We have found that the refusal of the defendants to absorb switching charges on some carload shipments at Richmond, while absorbing such charges on other carload shipments to and from that point, is unjust discrimination against the shippers who are required to pay such charges. * * * The defendants will be required to cease and desist from such discrimination in the future.”
[2] It is strenuously insisted that in the case of Wight v. United States, supra, the transfers in question were made by drayage, and that, therefore, that case is easily distinguished from the case at bar. While it is true that the transfer in the Wight Case was not made by rail connection, nevertheless the result of what was done in that case, as respects discrimination, is precisely the same as in this case. The evil sought to be cured by the statute was discrimination in favor of one party as against another similarly situated, and we fail to understand upon what theory it may be said that the absorption or transfer charges which relieve the shipper from the payment of switching charges could be held to be different from a case where a railroad paid the drayage charges for one shipper and refused to pay the same for another.
Commissioner Harlan in his concurring opinion, referring to the Wight Case, among other things, said:
“As I Rave understood it, the court there lays down the broad general doctrine that, as between two shippers at the same rate point, competition between carriers does not excuse or justify a discrimination of the character condemned as unlawful under section 2 of the act. And a careful reading of the case seems not to permit of the suggestion that the court would have reached just the opposite conclusion if, instead of a horse and cart, the Baltimore & Ohio had hired a switching line to deliver the traffic to the industry on the rails of its competitor, and had thus accomplished, merely by the use of different facilities, precisely the same discrimination which, in the case under discussion, was declared to be unlawful.”
The one was as much a discrimination as the other. Therefore we think that the Commission was correct in holding that the Wight Case [372]*372is determinative of the questions involved in those proceedings. To hold otherwise would simply result in the annulment of the plain provisions of the statute. It cannot be reasonably insisted that industries located on lines belonging to carriers other than the defendants, but receiving shipments at Richmond, do not constitute a part of the industries doing business at that place.
[3, 4] We are of opinion that the act in question confers upon the Interstate Commerce Commission the power of determining as to whether the services rendered are “like and contemporaneous”; also as to whether the respective traffic was “of a like kind.” Further, as to whether the transportation was made under “substantially similar •circumstances and conditions” (Texas & P. R. Co. v. I. C. C., 162 U. S. 197, 16 Sup. Ct. 666, 40 L. Ed. 940), while the act does not undertake to define the particular acts which constitute unlawful discrimination, it undoubtedly commits that to the Commission and its findings are conclusive. I. C. C. v. Ill. Cent. R. Co., 215 U. S. 452, 30 Sup. Ct. 155, 54 L. Ed. 280; I. C. C. v. D. L. & W., 220 U. S. 235, 31 Sup. Ct. 392, 55 L. Ed. 448; Pa. R. Co. v. International Coal Co., 230 U. S. 184, 33 Sup. Ct. 893, 57 L. Ed. 1446, Ann. Cas. 1915A, 315; United States v. L & N. R. Co., 235 U. S. 314, 35 Sup. Ct. 113, 59 L. Ed. 245.
The findings of fact by the Commission are conclusive, and we concur with them in their conclusions of law. Therefore we are of opinion that the petitioners are not entitled to the relief for which they pray, and this being a case where only injunctive relief is sought the petition will be denied and the bill dismissed.