in a large number of cases recognized competition, and especially water competition, as influential upon the establishment of reasonable rates. (Commercial Club of Omaha v. Chicago Ry. Co., 7 I. C. C. Rep., 404; Raworth v. Northern Pacific R. R. Co., 3 I. C. C. Rep., 862; Chattanooga Board of Trade, 10 I. C. C. Rep., 133; E. Sonheimer Co. v. Ill. Cen. R. R. Co., 17 I. C. C. Rep., 60; Bulte Milling Co. et al. v. Chicago & Alton R. R., 15 I. C. C. Rep., 351; Monroe Progressive League v. St. L. I. M. & S. Ry., 15 I. C. C., Rep., 534; Indianapolis Freight Bureau v. P. R. R. Co., 15 I. C. C. Rep., 567; Columbia Grocery Co. v. L. & N. R. R., 18 I. C. C. Rep., 502.)

It is earnestly claimed, however, that as the Interstate Commerce Commission found that this reshipping privilege at Nashville was a discrimination against Atlanta and the other Georgia points, that this court is concluded by that finding. In the case of A. T. & S. F. Ry. Co. et al. v. Interstate Commerce Commission (188 Fed., 229) this court said:

"In other words, as in this case, where all the facts are undisputed, we do not think the Commission can by an ultimate finding based upon the undisputed facts preclude this court from reaching a conclusion of its own upon such undisputed and admitted facts. When the facts are undisputed, there is no occasion for the facts to be found, and the ultimate conclusion of the Commission is a mixed question of law and fact which certainly ought not to be held to be conclusive upon this court."

Where the facts of a case are admitted and the question is what the judgment of a tribunal shall be upon such admitted facts, the case stands in the same position as if the facts had been found and the question should arise as to what should be the judgment upon the facts so found. This is always a question of law. So in the present instance, the facts being undisputed, the question arises whether these facts show a violation of Section III, and the solution of the question involves a consideration and interpretation of said section which is peculiarly a question of law and within the power of this court to decide.

In Interstate Commerce Commission v. Union Pacific R. R. (222 U. S., 541) it was said by the Supreme Court:

"There has been no attempt to make an exhaustive statement of the principles involved, but in cases thus far decided it has been settled that the orders of the Commission are final unless inter alia * * * (3) based upon a mistake of law."

Again, in the case of State of Washington ex rel. Oregon R. R. & Navigation Co. v. H. A. Fairchild et al., the question was presented as to whether, as a matter of law, the facts proved showed the existence of such a public necessity as authorized the taking of property, and the Supreme Court held in that case that the facts did not show the existence of such public necessity, although the Railroad Commission of the State of Washington had found otherwise. The Supreme Court cited the cases of

Kansas City Railway Co. v. Albers Commission Co., Cedar Rapids Gas Light Co. v. Cedar Rapids, and Graham v. Gill, decided by that court but not yet officially reported.

Our conclusion in regard to the whole case is that under the facts appearing in the record the reshipping privilege at Nashville is not in violation of Section III, nor a discrimination in favor of Nashville as against Atlanta and the other Georgia points, and that the facts being undisputed it is within the undoubted power of this court to so declare as a matter of law applicable to such a state of facts.

The order of the Interstate Commerce Commission complained of in this proceeding will therefore be annulled and the motion to dismiss denied. And it is so ordered.

HUNT, Judge, dissenting.

United States Commerce Court.

No. 49.-OCTOBER SESSION, 1911.

LEHIGH VALLEY RAILROAD COMPANY, PETITIONER

V.

UNITED STATES, RESPONDENT, INTERSTATE COMMERCE Commission and Henry E. Meeker, intervening respondents.

ON MOTION FOR PRELIMINARY INJUNCTION.

Mr. Frank H. Platt, with whom Mr. E. H. Boles, Mr. John G. Johnson, and Mr. Everett Warren were on the brief, for the petitioner.

Mr. Blackburn Esterline, special assistant to the Attorney General, with whom Mr. James A. Fowler, Assistant to the Attorney General, was on the brief, for the United States.

Mr. Charles W. Needham, for the Interstate Commerce Commission.

Mr. William A. Glasgow, jr., for intervening shipper.

Before KNAPP, Presiding Judge, and ARCHBALD, HUNT, CARLAND, and MACK, Judges.

PER CURIAM:

[Oct. 12, 1911.]

Without expressing any opinion as to whether the petition and supporting affidavits disclose a

state of facts which if established on the trial of the case would entitle the petitioner to the relief prayed for, it is the judgment of the court, in view of the matters set forth in the report of the commission, which is made a part of its order, and the presumptions of the validity of the order, that the motion for a preliminary injunction should be denied, and it will be so ordered.