the opinion of the court, in which I fully concur, and to which I can add nothing of conséquence. For these reasons, without regard to any others, the orders of the Commission were clearly invalid, and an injunction against them is properly to be granted, the motion to dismiss being necessarily overruled as the consequence. But I can not see my way to go beyond this and declare the fourth section valid, on which, if anything is to be said, my opinion is to the contrary.

United States Commerce Court.

No. 54.-APRIL SESSION, 1912.

ANACONDA COPPER MINING CO. AND BOSTON & Montana Consolidated Copper and Silver Mining Co., petitioners,

V.

UNITED STATES OF AMERICA, RESPONDENT, INTERstate Commerce Commission and Pittsburgh & Lake Erie Railroad Co., et al., interveners.

ON MOTIONS TO DISMISS.

Mr. William A. Glasgow, jr., and Mr. Charles D. Drayton, with whom Mr. James M. Beck and Mr. C. F. Kelley were on the brief, for the petitioners.

Mr. Winfred T. Denison, Assistant Attorney General, with whom Mr. Thurlow M. Gordon, special assistant to the Attorney General, was on the brief, for the United States.

Mr. P. J. Farrell for the Interstate Commerce Commission.

Mr. George Stuart Patterson and Mr. Frederic D. McKenney, with whom Mr. Ora E. Butterfield, Mr. W. Ainsworth Parker, and Mr. R. Walton Moore were on the brief, for the intervening carriers.

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

CARLAND, Judge:

[June 7, 1912.]

Petitioners are corporations engaged respectively at Anaconda and Black Eagle, in the State of Montana, in smelting ores containing copper, silver, and gold. On April 21, and March 11, 1909, they filed with the Interstate Commerce Commission nine separate petitions against certain carriers by railroad wherein it was prayed that the Commission grant an order compelling said carriers to cease and desist from charging petitioners and other shippers of coke over their lines of road from points in the State of West Virginia to Chicago and South Chicago, in the State of Illinois, 30 cents per hundred pounds in excess of the amount charged to other persons and corporations shipping coke contemporaneously between the same points, intended for use in smelting iron from the ores, and also that the petitioners be awarded reparation. Such proceedings were thereafter had in the matter of said petitions that on December 12, 1910, the Commission made its report and order dismissing the same.

The Commission found that the carriers had tariffs in accordance with which they charged, from the ovens in West Virginia and Pennsylvania to Chicago and certain Chicago points, a rate of $2.35 per net ton on coke when used for smelting iron from the ores; that said carriers in their tariffs charged for the transportation of coke between the points named, when used for other purposes than the smelting of iron from the ores, a rate of $2.65 per net ton; that the rates assessed upon the shipments shown to have

been made by the petitioners were the separately established or joint through rates from the West Virginia-Pennsylvania ovens to Chicago, plus the rates beyond to Anaconda and Black Eagle, Montana. At no time during the period that said shipments were made was there a joint through rate on coke by way of Chicago from the West Virginia-Pennsylvania ovens to either of these destinations; that, while some shipments were made to Montana direct, most of the coke moved from the ovens to Chicago, where it was reconsigned to the complainants. In either case the method of assessing and paying the freight charges was identical; that is, the coke rate from the ovens to Chicago was carried forward and paid at destination as advanced charges, and that it was improper for carriers to base their charges upon the use to which a commodity may be put.

The Commission further found, upon the question of reparation, as follows:

"The question remains to be determined whether the complainants are entitled to reparation, regardless of whether the $2.65 rate was or is unjust or unreasonable in and of itself. The complainants contend that it is illegal, unlawful, and contrary to the act for said defendants to charge a different or greater rate for transporting coke based upon its use, and that the $2.65 rate was unjust, unreasonable, and discriminatory. They offered no evidence whatever to show or prove that the $2.65 rate was in and of itself unjust, unreasonable, or discriminatory, save what appeared on the face of the tariffs, and left the unjust

ness, the unreasonableness, and discrimination to be deduced or inferred as a matter of law. The freighttraffic managers of the defendants testified that the $2.35 rate was a very low rate, and that the $2.65 rate was a just and reasonable rate for the service performed and was not in any manner excessive. The average distance from the ovens to Chicago by the lines of the defendants is about 575 miles, and the $2.65 rate yields an average revenue of 4.6 mills per ton-mile.

"Since July, 1903, the open rate on coke over all lines from the ovens in Pennsylvania and West Virginia to Chicago has been $2.65 per net ton. This rate has been, and is, the basing rate from said points of origin to Chicago, and for all territory, both east and west thereof, and has been paid by all consumers of foundry and other than furnace coke continuously during the past seven years, and no complaint has ever been made against it until these proceedings were instituted for reparation. The lower rate of $2.35 per net ton for use in blast furnaces for smelting iron from the ores was a tariff reduction, effective not earlier than July, 1905, and has been applied only to Chicago and vicinity, and is a very low rate for the service performed, and in and of itself is not deemed conclusive evidence of the unjustness or unreasonableness of the $2.65 rate.

"Copper and iron can not fairly be said to compete with each other in view of the fact that iron sells for less than $20 per ton and copper for anything between $200 and $500 per ton. There is no pretense in this