Smith, J.,
(after stating the facts). Respective counsel have cited and reviewed many cases and have evinced much learning and research in the presentation of their views regarding the powers and duties of the State Railroad Commission in prohibiting discrimination upon the part of common carriers against shippers. On a careful consideration of these briefs, we are led to the conclusion that there is no wide difference of opinion between counsel as to the duties of common carriers to serve all alike, and this case presents very largely a question of fact, as to whether or not any discrimination has been practiced against appellee Dixie Cotton Oil Company.
The trend of all modern legislation, upon the part of the Legislatures of the States of the Union, as well as of that upon the part of the Congress is to secure equal and just treatment and facilities to all shippers similarly situated and to prevent the giving of any preferences, or the making of any discrimination by any means whatsoever. And it may be said that this end has been accomplished, in so far as that result can be achieved by legislation, so that the law in general terms, as announced in numerous oases, may be said to be that railroad companies can not make private contracts by which they undertake to disregard the duty that is cast upon them by the law 'and the public policy which requires equal treatment to all shippers upon their lines. Armour v. United States, 209 U. S. 56; N. Y., N. H. & H. Ry. Co. v. Interstate Commerce Com., 200 U. S. 361-391; Southern Pac. Term. v. Inters. Com. Com., 219 U. S. 498-525.
The appellee Dixie Cotton Oil Company says it has not been thus treated, but that upon the contrary, it has been, and is now, being discriminated against in that the St. Louis, Iron Mountain & Southern Railway Company (hereinafter called the Iron Mountain), does switching for the Buckeye Company for which no charge is made, whereas a charge of $3 for each ear delivered to its own plant is made, when, as it is said, neither of the cotton oil companies is situated upon the line of the Iron Mountain railway company. The right of railroad companies to do switching free of charge for all industries located upon their lines is re'cognized. The Dixie Company is located upon the lines of both the Bock Island and the Cotton Belt railroads, and neither of those companies makes a charge against the Dixie Company for switching, for freight shipped over their lines. The Iron Mountain does make a charge against the Dixie Company because it says that company is not located upon its line. The right to make a switching charge for ear deliveries to an industry not situated on the delivering carriers line is recognized by all parties.to this litigation, and the existence of this right is too thoroughly settled to be questioned here. So, as will be seen from this statement of the respective contentions, the questions here involved are chiefly questions of fact. 3
The order of the Bailroad Commission complained of requires the railroad companies on and after the 15th day of October, 1909, and until the further orders of the commission, to desist and refrain from rendering switching services to the Buckeye Cotton Oil Company upon other or more favorable terms than are accorded by the railroad companies, or either of them, to the Dixie Company, and the said companies are required to perform switching services to and from the plant of the Dixie Company at and for the switching rates now maintained and charged by said companies against the Buckeye Company for similar services. This order of the commission ■ could be complied with only by the acquisition of a spur track connecting the Iron Mountain railway company with the Dixie Company, or by refunding to that company .the switching charges which it is required to pay the Cotton Belt Company for handling freight either outward bound or inward bound to it over the lines of the Iron Mountain Railway Company, or by appellants abandoning their arrangement under which both companies reach the plant of the Buckeye Company and do switching for that company without making any charge therefor. The appellee Dixie Company says that it does not contend that the Iron Mountain Railway Company should be required to build a spur connecting the line of that railroad with its plant; but while it does not make that demand directly, this requirement is the alternative of its demand, and of the order of the Railroad Commission.
It must be, and is conceded, that the Railroad Commission has no authority to compel the Iron Mountain Company to build a spur to connect with the Dixie plant, as this plant is situated more than a mile from the track of that railroad company. The real question, therefore, is whether or not the railroad companies have the right to perform switching services for the'Buckeye Company without charge. Appellee insists that the Buckeye Company is not situated upon the track of either of the appellant companies, and that it is only by a subterfuge that the contrary is made to appear. But we do not think the evidence supports this position. The proof shows that the Buckeye Company’s plant, when originally erected, had switching facilities only over the tracks of the Rock Island railway company, and that it subsequently acquired at its own cost a right-of-way connecting its plant with the tracks of the Cotton Belt Company; and it entered into an arrangement with the Iron Mountain Company by which that company constructed a necessary track to make physical connection between the spur track which the Buckeye Company already owned and the main line of the Cotton Belt railroad. Having acquired this contractual right, appellant railroad companies entered into an agreement by the terms of which each used the tracks of the other so that each company was given an entry to the plant of the Buckeye Company. As a result of this arrangement, cars from the Iron Mountain tracks are hauled over the line of the Cotton Belt railroad to the junction of that railroad with the spur track which connects with the Buckeye Company, and the oars are then switched over that spur to that plant. The Cotton Belt Company reaches the plant of the Buckeye Company by running over its own track to the junction with the Iron Mountain spur, and thence over this spur to the Buckeye plant. This 'arrangement is not unlawful, nor can it be said that it violates any public policy. Indeed, such arrangements are very common and are equally advantageous to the carrier and the shipper alike. Now, the real purpose of this litigation is not to disturb that arrangement, but to compel its extension, in other words, to require the railroad companies to enlarge the scope of their contract so that the Dixie Company may have free switching services of cars inbound or outbound over the Iron Mountain railroad. Of course, this is not asked directly, but it is the alternative of the relief which it seeks, both as the result of the order of the Railroad Commission which it procured that commission to make, and the litigation which it instituted for the recovery of penalties against the appellant railroad companies for the alleged discrimination.
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Smith, J.,
(after stating the facts). Respective counsel have cited and reviewed many cases and have evinced much learning and research in the presentation of their views regarding the powers and duties of the State Railroad Commission in prohibiting discrimination upon the part of common carriers against shippers. On a careful consideration of these briefs, we are led to the conclusion that there is no wide difference of opinion between counsel as to the duties of common carriers to serve all alike, and this case presents very largely a question of fact, as to whether or not any discrimination has been practiced against appellee Dixie Cotton Oil Company.
The trend of all modern legislation, upon the part of the Legislatures of the States of the Union, as well as of that upon the part of the Congress is to secure equal and just treatment and facilities to all shippers similarly situated and to prevent the giving of any preferences, or the making of any discrimination by any means whatsoever. And it may be said that this end has been accomplished, in so far as that result can be achieved by legislation, so that the law in general terms, as announced in numerous oases, may be said to be that railroad companies can not make private contracts by which they undertake to disregard the duty that is cast upon them by the law 'and the public policy which requires equal treatment to all shippers upon their lines. Armour v. United States, 209 U. S. 56; N. Y., N. H. & H. Ry. Co. v. Interstate Commerce Com., 200 U. S. 361-391; Southern Pac. Term. v. Inters. Com. Com., 219 U. S. 498-525.
The appellee Dixie Cotton Oil Company says it has not been thus treated, but that upon the contrary, it has been, and is now, being discriminated against in that the St. Louis, Iron Mountain & Southern Railway Company (hereinafter called the Iron Mountain), does switching for the Buckeye Company for which no charge is made, whereas a charge of $3 for each ear delivered to its own plant is made, when, as it is said, neither of the cotton oil companies is situated upon the line of the Iron Mountain railway company. The right of railroad companies to do switching free of charge for all industries located upon their lines is re'cognized. The Dixie Company is located upon the lines of both the Bock Island and the Cotton Belt railroads, and neither of those companies makes a charge against the Dixie Company for switching, for freight shipped over their lines. The Iron Mountain does make a charge against the Dixie Company because it says that company is not located upon its line. The right to make a switching charge for ear deliveries to an industry not situated on the delivering carriers line is recognized by all parties.to this litigation, and the existence of this right is too thoroughly settled to be questioned here. So, as will be seen from this statement of the respective contentions, the questions here involved are chiefly questions of fact. 3
The order of the Bailroad Commission complained of requires the railroad companies on and after the 15th day of October, 1909, and until the further orders of the commission, to desist and refrain from rendering switching services to the Buckeye Cotton Oil Company upon other or more favorable terms than are accorded by the railroad companies, or either of them, to the Dixie Company, and the said companies are required to perform switching services to and from the plant of the Dixie Company at and for the switching rates now maintained and charged by said companies against the Buckeye Company for similar services. This order of the commission ■ could be complied with only by the acquisition of a spur track connecting the Iron Mountain railway company with the Dixie Company, or by refunding to that company .the switching charges which it is required to pay the Cotton Belt Company for handling freight either outward bound or inward bound to it over the lines of the Iron Mountain Railway Company, or by appellants abandoning their arrangement under which both companies reach the plant of the Buckeye Company and do switching for that company without making any charge therefor. The appellee Dixie Company says that it does not contend that the Iron Mountain Railway Company should be required to build a spur connecting the line of that railroad with its plant; but while it does not make that demand directly, this requirement is the alternative of its demand, and of the order of the Railroad Commission.
It must be, and is conceded, that the Railroad Commission has no authority to compel the Iron Mountain Company to build a spur to connect with the Dixie plant, as this plant is situated more than a mile from the track of that railroad company. The real question, therefore, is whether or not the railroad companies have the right to perform switching services for the'Buckeye Company without charge. Appellee insists that the Buckeye Company is not situated upon the track of either of the appellant companies, and that it is only by a subterfuge that the contrary is made to appear. But we do not think the evidence supports this position. The proof shows that the Buckeye Company’s plant, when originally erected, had switching facilities only over the tracks of the Rock Island railway company, and that it subsequently acquired at its own cost a right-of-way connecting its plant with the tracks of the Cotton Belt Company; and it entered into an arrangement with the Iron Mountain Company by which that company constructed a necessary track to make physical connection between the spur track which the Buckeye Company already owned and the main line of the Cotton Belt railroad. Having acquired this contractual right, appellant railroad companies entered into an agreement by the terms of which each used the tracks of the other so that each company was given an entry to the plant of the Buckeye Company. As a result of this arrangement, cars from the Iron Mountain tracks are hauled over the line of the Cotton Belt railroad to the junction of that railroad with the spur track which connects with the Buckeye Company, and the oars are then switched over that spur to that plant. The Cotton Belt Company reaches the plant of the Buckeye Company by running over its own track to the junction with the Iron Mountain spur, and thence over this spur to the Buckeye plant. This 'arrangement is not unlawful, nor can it be said that it violates any public policy. Indeed, such arrangements are very common and are equally advantageous to the carrier and the shipper alike. Now, the real purpose of this litigation is not to disturb that arrangement, but to compel its extension, in other words, to require the railroad companies to enlarge the scope of their contract so that the Dixie Company may have free switching services of cars inbound or outbound over the Iron Mountain railroad. Of course, this is not asked directly, but it is the alternative of the relief which it seeks, both as the result of the order of the Railroad Commission which it procured that commission to make, and the litigation which it instituted for the recovery of penalties against the appellant railroad companies for the alleged discrimination.
It occurs to us that a fair statement of the position of the Dixie Company is to say that because the railroad companies have mad.e a contract, which resulted in giving the Buckeye Company free switching service, that they should therefore be compelled to enlarge the contract so that it may have free switching services. The Dixie Company’s plant is more than a mile from the main line of the Iron Mountain railroad, and it is 4,187 feet from the main line of the Iron Mountain railroad to the point of junction on the main line of the Cotton Belt with the Buckeye spur; and it is 1,545 feet from this spur junction to the point where the Dixie Company switch connects with the Cotton Belt railroad; and from this last mentioned switch it appears to be 632 feet still further to the Dixie plant. A part of the evidence heard before the court below, which was not offered at the hearing before the Interstate Commerce Commission, related to the manner in which switching was done for the Buckeye Company by tbe appellant railroad companies. There was evidence to the effect, that the Iron Mountain railroad in switching cars, which had been received over its line, to the Buckeye plant, frequently ran its. engine beyond the point where the Dixie switch connects with the Cotton Belt, and-that trains have been run as far on the line of the Cotton Belt railroad as the Dixie plant itself. But that fact is not controlling. It is necessarily true that the Iron Mountain Bailway Company would be compelled to use more of the track of the Cotton Belt railroad to afford switching facilities to the Dixie Company, than would be, or is required, to afford the same service to the Buckeye Company; and it does not follow that because these railroads have seen proper to enter into an arrangement which permits the joint use of a portion of their tracks that they must therefore contract for an enlarged joint use, whenever called upon so to do. A statement of this position carries its own refutation. If, because they had contracted for the joint use of a rod of their track, they could be required to contract for the joint use of a mile, there would be no limitation of the exactions of this nature which might be made against them.
The full measure of the duty of railroad carriers is to furnish equal facilities to all persons similarly situated, and we think the facts of this case clearly show the two cotton oil companies are not similarly situated. The Iron Mountain Company does not reach the plant of the Dixie Company and could do so only by building more than a mile of track, or by acquiring from the Cotton Belt railway company the right to use its track into that plant. No such duty is placed upon any railroad company.
This case does not involve the right of the Bailroad Commission, in the proper exercise of the powers conferred upon it, to determine whether the public necessity and convenience requires the establishment of a spur track, because this proceeding was not had under the statutes conferring that authority upon the commission. The right of the commission in such cases is discussed in the case of St. Louis, I. M. & S. Ry. Co. v. State, 99 Ark. 1. But this case does not involve any question of that authority. In the above cited case, however, it was held that an order of the Railroad Commission requiring the railroad company to build a spur track at a certain place is presumed to he reasonable and just, hut may he reviewed by the court upon proof that it is so arbitrary and unreasonable as to he void for want of power, and that decision is authority for holding that the orders of the commission are not impervious to collateral attack. See, also, St. Louis S. W. Ry. Co. v. State, 85 Ark. 311.
Appellee says that the order of the Railroad1 Commission which forms the basis of these suits is conclusive until it has been reviewed and annulled by certiorari. But the two cases last cited are against this position, and permit an inquiry both into the authority of the commission, and the reasonableness of its orders, even in a collateral proceeding such as this is.
We conclude, therefore, that the court erred in its judgment, and this consolidated cause will be reversed and dismissed.