case that the complainants were engaged in smelting iron from its ores. The allegation in some of the petitions, that the complainants were engaged in smelting ores containing copper, silver, gold, and iron, does not place them under the terms of the tariffs providing for the rate on blast-furnace coke, and no effort was made on the part of the complainants to show that they ever actually smelted iron from its

ores.

"In view of all the facts and circumstances in these cases, we are not convinced that the rate of $2.65 per net ton charged the complainants was either unjust or unreasonable for the services rendered by the defendants."

Petitioners have brought this case for the purpose of having annulled and set aside the order of the Commission dismissing the petitions in the abovementioned cases. A motion to dismiss the petition in this case has been filed by respondent and by each of the intervening respondents. The grounds upon which said motion to dismiss is based, speaking generally, are: Want of jurisdiction of the Commerce Court in the premises, and the failure of the petition herein to state a cause of action. Counsel for petitioners claim in this court, as they did before the Commission, that when it appears that there was one rate of $2.35 per net ton on coke from West Virginia - Pennsylvania ovens to Chicago when the coke was to be used in smelting iron from the ores, and another rate of $2.65 per net ton between the same points on coke to be used for other purposes

than the smelting of iron from the ores, it clearly follows as a matter of law that the $2.65 rate is unlawful, unreasonable, and unjust, and that petitioners were entitled before the Commission to have an award based upon their shipments of the difference between the two rates, the petitioners having paid the higher rate.

The Commission having refused to sustain this claim of the petitioners, they now urge that the order of the Commission dismissing their petitions was illegal by reason of a mistake in law, and that this court may correct the same by setting aside the order of dismissal.

We do not think that we are called upon to decide what the law would be if applied to a case where there was no finding by the Commission as to the unreasonableness of either rate, for the reason that as appears from the report of the Commission there was evidence introduced by the carriers and otherwise appearing in the case as to the reasonableness of the $2.65 rate, and the Commission in the exercise of a power clearly vested in it by law, having found that the $2.65 rate was not unreasonable and unjust, we are of the opinion that we have no authority nor jurisdiction upon the present record to disturb that finding, and that the Commission having found that said rate of $2.65 was not unjust and unreasonable in and of itself, we can not say as a matter of law that because there was a lower rate charged on coke used in smelting iron from the ores that the petitioners were injured within the meaning of section 8 of the act to

regulate commerce. (Knudson-Ferguson Fruit Co. v. M. C. R. Co., 148 Fed., 968; Parsons v. C. & N. W. Ry. Co., 167 U. S., 447; E. Lauer & Son v. Southern Pacific Co., 18 I. C. C., 109; Bash Fertilizer Co. v. Wabash R. Co., 18 I. C. C., 522; Copper Queen Consolidated Mining Co. v. B. & O. R. R., 18 I. C. C., 154; Anaconda Copper Mining Co. v. Chicago & Erie R. R. et al., 19 I. C. C., 592; International Salt Co. v. Penn. R. Co., 20 I. C. C., 539; Carter White Lead Co. v. Norfolk & Western R. Co., 21 I. C. C., 41; M. A. Kennedy & Co. v. St. L. & S. W. Ry. Co., 22 I. C. C., 277.)

It further affirmatively appears in the record that petitioners as to shipments of coke were not in competition with persons or corporations to whom the lower rate was charged, and this fact was considered a bar to a recovery in the following cases: Mitchell Coal & Coke Co. v. Pennsylvania R. Co. (181 Fed., 403), Charles H. Lilly Co. v. N. P. R. (117 Pac. Rep., 401).

Upon the question of jurisdiction we see no reason for departing from our ruling in the cases of Thompson Lumber Co. v. Interstate Commerce Commission et al. (193 Fed., 682), and Russe & Burgess v. Interstate Commerce Commission et al. (193 Fed., 678).

Upon the facts in the record we think we must dismiss the petition of the petitioners filed in this court, and it is so ordered.

UNITED STATES, RESPONDENT, INTERSTATE COMMERCE COMMISSION ET AL., INTERVENERS.

ON MOTIONS TO DISMISS.

For opinions of Interstate Commerce Commission see 15 I. C. C. Rep., 248, and 17 I. C. C. Rep., 514. Mr. William A. Glasgow, jr., and Mr. Cyrus G. Derr, with whom Mr. Charles F. Diggs was on the brief, for the petitioner.

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. Jackson E. Reynolds for the Central Railroad Company of New Jersey, intervener.

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

48250-S. Doc. 789, 62-2-31

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