These are appeals from orders of a statutory court of three judges, convened in the Southern District of Ohio, in two suits, one brought by the state of Ohio and the Public Utilities Commission of Ohio, and the other by the Wheeling & Lake Erie Railway Company against the United States and the Interstate Commerce Commission, to enjoin and set aside two orders of the commission. The suits were consolidated for trial. The first of the commission's orders, that of May 2, 1933, required the increase of Ohio intrastate rates on bituminous coal from certain mining districts in Eastern and Southern Ohio to destinations in the northeastern portion of the state. The second order, that of May 9, 1933, required the rates prescribed by the first to be increased by the amount of the surcharge authorized upon interstate rates on bituminous coal in the Fifteen Per Cent Case, 1931, 178 I.C.C. 539, 179 I.C.C. 215, and 191 I.C.C. 361. While the causes were under submission, the period during which the surcharge was authorized expired, and it was discontinued. The court, therefore, refrained from any adjudication as to the order of May 9, 1933, and no issue is here raised concerning it.
The court granted preliminary injunctions, but after a hearing on the merits, dissolved them and dismissed the bills. It, however, stayed the operation of the order of May 2, 1933, for a period of sixty days, so that the plaintiffs might perfect an appeal to this Court. Upon the allowance of an a peal (No. 868) the defendants took a cross-appeal (No. 886) assigning as error the entry of the stay order. By decree of February 12, 1934 (291 U.S. --, 54 S.Ct. 452, 78 L.Ed. --), the stay was vacated. The appeal in No. 886 will, therefore, be dismissed as moot.
The commission's order of May 2, 1933, requiring the rates intrastate from points in Southern and Eastern Ohio to destinations in Northeastern Ohio, on bituminous coal in carload lots, to conform to those in effect prior to June 30, 1932, was entered under section 13(3) and (4) of the Interstate Commerce Act. The commission found that the reduced rates put into effect on the intrastate traffic in question as a result of orders or permission of the Public Utilities Commission of Ohio were unduly preferential of persons and localities in Ohio, unduly prejudicial to persons and localities without the state, and that they cast an undue revenue burden upon interstate commerce.
The appellants, conceding the commission's power under section 13(3) and (4) of the act (Florida v. United States, 282 U.S. 194, 208, 51 S.Ct. 119, 75 L.Ed. 291; United States v. Louisiana, 290 U.S. 70, 54 S.Ct. 28, 78 L.Ed. 181; Florida v. United States, 292 U.S. 1, 54 S.Ct. 603, 78 L.Ed. --), claim the dismissal of the bills was erroneous for these reasons: (1) The commission did not afford them the full and fair hearing to which they are entitled by section 13 of the act. (2) There is no evidence to support the finding that restoration of the state rates to their former level was required to avoid undue preference and prejudice between persons and localities. (3) The commission exceeded its authority in requiring the state rates to be raised, without first having found reasonable, or made reasonable, all substantially competitive interstate rates to the same destinations.
The District Court held the order justified by reason of undue preference and prejudice, but did not pass upon the lawfulness of the commission's action in respect of revenue discrimination. We hold the decision of the court was right and we need not discuss the arguments presented as to revenue burden.