[306 U.S. 153, 154] Messrs. John S. Burchmore and Nuel D. Belnap, both of Chicago, Ill., for appellants.
Messrs. Edward M. Reidy, of Washington, D.C., and J. R. Barse, of Chicago, Ill., for appellees the United States and the Interstate Commerce Commission.
Mr. Justice BLACK delivered the opinion of the Court.
In No. 227, after full hearings the Interstate Commerce Commission, on July 11, 1935, found and reported1 that the Indiana Harbor Belt Railroad was engaged in the practice of paying an allowance for appellant's service in spotting cars in appellant's plant;2 that appellant was performing this plant service for its own convenience; that the Railroad was under no legal obligation to spot the cars and therefore the allowance was paid for service for which the Railroad was not compensated under line-haul rates; that the allowance was unlawful and afforded appellant a preferential service, not accorded to shippers generally, amounting to refund or remission of part of the rates charged or collected as compensation for transporting freight. On the same date, an order of the Commission incorporated its report and findings, including the finding that 'by the payment of said allowances the Indiana Belt Railroad Company violates the Interstate Commerce Act.' This order also directed the Railroad [306 U.S. 153, 155] to 'cease and desist on or before September 3, 1935, and thereafter to abstain from such unlawful practice.'
August 28, 1935, upon petition of appellant, the District Court, three judges sitting, granted an interlocutory injunction by which the Commission's report and order were 'suspended, stayed, and set aside'- 'pending the further order of the court'; the Commission was restrained and enjoined from enforcing them; and, the Railroad having previously given public notice that its published tariff providing for the allowance would be cancelled as of September 3, 1935, in accordance with the Commission's order, the injunction suspended the effective date of the cancellation. But the interlocutory injunction also provided 'that until the further order of the Court, any and all sums due and payable to plaintiff (appellant), under the ... tariff providing said allowance, shall be set up by defendant Indiana Harbor Belt Railroad Company on its books of account, which sums so set up shall be paid over to ... ( appellant), or canceled, only upon the further order of this Court, ( appellant) ... by its counsel having agreed in open court to such arrangement, without prejudice.'
February 26, 1937, the Commission entered an order purporting to extend the effective date of its command to 'cease and desist' to June 15, 1937, but specifically provided that its order of July 11, 1935, should 'in all other respects remain in full force and effect.'
April 27, 1938, the District Court dismissed appellant's petition for want of equity, dissolved the interlocutory injunction, and ordered the accrued allowances that had been set aside in a special account by the Railroad as required by the interlocutory injunction to 'be retained by ... (the Railroad) as a part of its general funds and said account canceled.'
Appellant concedes the correctness of the District Court's decree holding the Commission's order valid, dismissing the petition and denying a permanent injunc- [306 U.S. 153, 156] tion. 3 The appeal only seeks a review of the Court's action in ordering that the unlawful allowances accumulated after the date of the interlocutory injunction be retained by the Railroad and not paid to appellant.
First. In granting the interlocutory injunction, the District Court proceeded under a jurisdictional Act which provides that '... the court, in its discretion, may restrain or suspend, in whole or in part, the operation of the commission's order pending the final hearing and determination of the suit.' 4 Appellant invoked the Court's equity powers.