Argument for the United States. 234 U. S. the Commerce Court substituted its judgment, on these facts and circumstances, for that of the Commission, is beyond question. A comparison of the language used by the Commission with that of the court conclusively demonstrates it. The Commerce Court reviewed the element of the socalled water competition, and substituted its judgment that the industrial track service is not the same as the team track or depot service, for the contrary judgment of the Commission. In doing so, the Commerce Court assumed an authority which this court, for the past ten years, has persistently condemned in every decision relating to the respective functions of the Commission and the courts. The Commission found that these spurs and sidetracks were a part of the terminal facilities; that deliveries thereon were the same, in cost and character, as the deliveries on the public team tracks; that the line haul rates for all other shippers embraced, without additional charge, deliveries on the terminals; and that out of 10,000 cities in the United States where terminal services are performed, only in the cities of San Francisco, Los Angeles, and San Diego, was this spur track charge imposed. Having made these findings, the conclusion of the Commission that the extra charge was unlawful followed as a matter of course. No justification is given for the extra charge of $2.50 for spur track delivery. The appellees are practically the only carriers who may compete for the freight, and it is easy for them to agree. When competition is inimical to their interests, they do not compete. When asked by the Commission why this charge was made at these points, the traffic manager of one of the roads replied, "Because we can get it." Another railroad official who appeared before the Commission explained the non-existence of such a charge at all other points on his line, as well as throughout 234 U. S. Argument for Appellees. the country at large, by saying that the absence of such a charge was "a tribute to competition." The Commerce Court held that "the ultimate conclusion of the Commission is a mixed question of law and fact which certainly ought not to be conclusive upon this court." But this court has held that even on a mixed question of law and fact the findings of the Commission are conclusive. Ill. Cent. R. R. Co. v. Int. Com. Comm., 206 U. S. 441, 455, 459. Mr. P. J. Farrell for the Interstate Commerce Commission. Mr. Fred H. Wood and Mr.Gardiner Lathrop, with whom Mr. Robert Dunlap, Mr. T. J. Norton, Mr. C. W. Durbrow, Mr. W. F. Herrin and Mr. J. P. Blair were on the brief, for appellees. There was no abuse of power in issuing injunction pendente lite. The switching charge is not embraced in regular rate. It covers a special service rendered under special contract and separate charge therefor is legal. There is no dispute as to meaning of tariffs. The charge is imposed for special service not rendered to public in general and properly stated separately and in addition to freight rate. The charge is separately stated in pursuance of § 6 of the Interstate Commerce Law. There are other instances in which a separate charge has been imposed in addition to usual rate. It is not obligatory upon a railway company to construct industrial spurs and deliver and receive freight thereon. Any obligation is wholly contractual and a separate charge for such service is proper. The Government's cases are not in point. The charge is not violative of § 2 of the act concerning unjust discriminations. Argument for Appellees. 234 U. S. The charge was not found to be violative of § 3 of the act concerning undue preferences. It is error to consider the supposed practice of railway companies, in general, making free deliveries at private industries, as they would not disclose the legal duties of carriers complained against under the Interstate Commerce Law, and the Commission was confined to ascertaining and determining whether these particular railway companies in making the charge complained of were doing or omitting to do something in contravention of some provision of that law. It conclusively appears from the form of the order and the face of the Commission's report that the order is not based upon any finding of discrimination under either the second or third sections, but upon a construction of the statute which would forbid any carrier from separating its terminal and haulage charges on the same shipment. The Commission's construction of the law is erroneous. By the plain intendment of the language used, carriers performing a road service between termini may separately state the charges for carriage between places named in the tariffs and their own terminal services performed at the places between which such transportation is conducted. The Commission's construction is contrary to the purposes and scope of the statute as shown by its legislative history. The Commission's construction is contrary to the construction of the English act at the time of the passage of the Act to Regulate Commerce. In the construction of this statute no assumed custom of embracing within a single charge compensation for these two services can weigh against the plain reading of the statute and the contemporaneous construction of similar provisions in the English law. In so far as the order is predicated upon any assumption that the cost of team track delivery and industry track 234 U. S. Argument for Appellees. delivery is the same, it is based upon an assumption warranted by no finding of the Commission, contrary to the undisputed evidence before the Commission, and contrary to the specific allegation of the petition, admitted by the motions of appellants, that the cost of industry track delivery is greater than the cost of team track delivery. Waiving the form of the order, the tariffs of the carriers in imposing a terminal charge for industry track delivery when made in connection with a line haul by the carrier making such delivery, while making no terminal charge for team track delivery incident to a line haul, violated no provision of the Act to Regulate Commerce. The two services in question are not like services performed under similar circumstances and conditions; and the resultant difference in charges results in no undue preference, but is justified both by the dissimilar circumstances and conditions under which rendered, and by the added value of the service in connection with industry track delivery, for which it is just to make an additional charge. In support of these contentions, see Central Stock Yards Co. v. Louis. & Nash. R. R., 192 U. S. 568; Chalk v. Charlotte &c. R. Co., 85 N. Car. 371; Evershed v. London &c. R. Co., 2 Q. B. D. 254; Fenner v. Buffalo &c. R. Co., 44 N. Y. 505; Francis v. Dubuque &c. R. Co., 25 Iowa, 60; Hall v. London & Brighton Ry. Co., 15 Q. B. D. 505; Imperial Wheel Co. v. St. L., I. M. & S. Ry., 20 I. C. C. 56; Import Rate Case, 162 U. S. 197, 219; In re Investigation of Coal Rates, 22 I. C. C. 604; Int. Com. Comm. v. Balt. & Ohio R. R. Co., 225 U. S. 326; Int. Com. Comm. v. Balt. & Ohio R. R. Co., 145 U. S. 284; Int. Com. Comm. v. Chicago G. West. Ry. Co., 209 U. S. 108; Int. Com. Comm. v. Louis. & Nash. R. R. Co., 227 U. S. 88, 100; Int. Com. Comm. v. Stickney, 215 U. S. 98; McNeill v. Southern Ry. Co., 202 U. S. 543; Minnesota Rate Cases, 230 U. S. 352; Missouri Rate Cases, 230 U. S. 474; New Orleans &c. R. Co. v. Tyson, 46 Mis Opinion of the Court. • 234 U.S. sissippi, 729; Party Rate Case, 145 U. S. 284; Ralston Townsite Co. v. M. P. Ry., 22 I. C. C. 354; South &c. Ala. R. Co. v. Wood, 66 Alabama, 167; State v. Republican Valley R. Co., 17 Nebraska, 647; Tex. & Pac. R. R. Co. v. Int. Com. Comm., 162 U. S. 197, 219; Witbeck v. Holland, 45 N. Y. 13; Winters Paint Co. v. C., M. & St. P. Ry., 16 I. C. C. 587; Union Pacific R. R. Co. v. United States, 117 U. S. 355; United States v. Balt. & Ohio R. R. Co., 231 U. S. 274. MR. JUSTICE HUGHES delivered the opinion of the court. The Atchison, Topeka and Santa Fe Railway Company, the Southern Pacific Company and the San Pedro, Los Angeles and Salt Lake Railroad Company, brought this suit against the Interstate Commerce Commission in the Circuit Court of the United States for the District of Kansas, first division, to restrain the enforcement of an order of the Commission made in April, 1910. The order required these companies to desist 'from exacting their present charge of $2.50 per car for delivering and receiving carload freight to and from industries located upon spurs and sidetracks within their respective switching limits' in Los Angeles, California, when such carload freight 'is moving in interstate commerce incidentally to a systemline haul.' It also prohibited the exaction of any charge whatever, other than the charge for transportation from points of origin to destination, for delivering or receiving carload freight in such cases.1 1 The order is as follows: "This case being at issue on complaint and answer on file, and having been duly heard and submitted by the parties, and full investigation of the matters and things involved having been had, and the commission having, on the date hereof, made and filed a report containing its findings of fact and conclusions thereon, which said report is hereby referred to and made a part hereof, and having found that the present charge of $2.50 per car exacted by the several defendants for delivering |