Assistant to the Attorney General Ellis and Messrs. Luther M. Walter, L. A. Shaver, and H. B. Arnold for appellant.
Messrs. Garrard B. Winston, F. S. Winston, and Robert Mather for appellee.
Messrs. Eldon J. Cassoday and Rush C. Butler (by special leave) for the receivers of the Illinois Collieries Company.
Messrs. Francis I. Gowen, wayne MacVeagh, and McKenney & Flannery (by special leave) for the Pennsylvania Railroad Company.
[215 U.S. 479, 480] Mr. Justice White delivered the opinion of the court:
This case is controlled by the opinion just announced in the case of Interstate Commerce Commission v. Illinois C. R. Co. [ 215 U.S. 452 , 54 L. ed. --, 30 Sup. Ct. Rep. 155]. The complaints made to the Commission were alike in both cases, and they were heard before that body at the same time, and one report was made in both cases. The order in both cases was the same. Like bills for injunction were filed in the court below, and there also they were heard together and were disposed of in one opinion. There is only this difference between the two cases. In this the bill for injunction contained the following averment concerning a small number out of the thousands of coal cars forming part of the equipment of the road:
The answer of the Commission denied all knowledge of the truth of the averments thus made, and called for proof on the subject. No proof was made, and the cause was submitted to the court below on bill and answer. In view of this fact, and in consideration, moreover, of the weight which the law gives to the finding of the Commission as to the existence of unlawful preference, and the operative effect of the order which the Commission made, until set aside, we think the mere [215 U.S. 479, 481] averment of the facts referred to in no way causes this case to differ from the Illinois Central Case. Of course, under these circumstances, we intimate no opinion as to how far, had the facts alleged as to the hopper cars been established, they would, to the extent of such cars, have taken this case out of the rule announced in the Illinois Central Case. It follows that the judgment must be reversed and the case remanded for further proceedings in conformity to this opinion.
Mr. Justice Brewer dissents.