if it saw fit, or make other contracts with those who could supply the wants of the city in that respect. We see no reason why the city might not, if it so determined, make preparation for water supply to its own citizens which would be available upon the expiration of the contract, the contract accomplishing that purpose until by its terms it had expired. To appropriately accomplish this required time and we think the city was within its rights, not being obligated by any contract to purchase the works of the Water Works Company, the company having been content to accept the franchise without this requirement, and was free to make other adequate provision to meet this essential requirement of the inhabitants of the city.

The views we have expressed require a reversal of the judgment of the Circuit Court of Appeals, affirming the decree of the District Court. It is therefore ordered that the judgment be

Reversed and the case remanded to the District Court of the United States for the Southern District of Mississippi, for further proceedings not inconsistent with this opinion.

UNITED STATES v. BALTIMORE & OHIO RAILROAD COMPANY.

APPEAL FROM THE UNITED STATES COMMERCE COURT.

No. 385. Argued January 16, 17, 1913.-Decided December 1, 1913.

Premises occupied and used by a common carrier as a depot or freight

station may become such through contract with the owners and not necessarily by lease or purchase.

The fact that the carrier leases a terminal from a shipper near that shipper's establishments does not, in the absence of any fraudulent intent, import a discrimination in favor of that shipper where the

231 U. S.

Argument for the United States.

station is actually used for the benefit alike of all shippers in that neighborhood.

A carrier may compensate a shipper for services rendered and instrumentalities furnished in connection with its own shipments; and if the amount is reasonable it is not a prohibited rebate or discrimination, even if the carrier does not allow other shippers to render and furnish similar services and instrumentalities and compensate them therefor.

Because a contract for terminal facilities contemplates and provides for the publication of joint tariffs does not make the owners of the terminal common carriers if no joint tariffs are ever filed or published.

Where the Interstate Commerce Commission held payments for shippers' services rendered and facilities furnished to be discriminatory only in so far as similar payments for similar services are not paid to other shippers, other questions as to the legality of such payments which were not passed on by the Commission or the Commerce Court are not properly before this court and will not be passed on. Quære, and not now discussed or decided, whether a shipper furnishing lighterage service within lighterage limits for a part of the rate becomes a common carrier and debarred from transporting his own goods under the commodity clause of the Act to Regulate Commerce. A shipper may be under disadvantages in regard to his shipments by a common carrier by reason of his disadvantageous location. 200 Fed. Rep. 779, affirmed.

THE facts, which involve the legality of an order made by the Interstate Commerce Commission regarding certain allowances made by railroad carriers to shippers and determination of whether such allowances constituted illegal preferences or discriminations in violation of the Act to Regulate Commerce, are stated in the opinion.

Mr. Solicitor General Bullitt for the United States: Arbuckle Brothers in operating the Jay Street Terminal and in transporting freight by floats, etc., between Brooklyn and Jersey City are an integral part of the through trunk line systems operating into and out of greater New York, and as such are common carriers by railroad, and are subject to the Interstate Commerce Act. United

Argument for Interstate Commerce Commission. 231 U. S.

States v. Union Stock Yard, 226 U. S. 286, 302, 304, 306; United States v. Del. & Hud. Co., 213 U. S. 366.

The Hepburn Act does not authorize the railroads to make the arrangement in question with Arbuckle Bros. and to pay them for their services in transporting freight between Brooklyn and Jersey City. Int. Comm. Comm. v. Diffenbaugh, 222 U. S. 42; Un. Pac. R. R. v. Updike Grain Co., 222 U. S. 215.

Mr. P. J. Farrell for the Interstate Commerce Commission:

The Commission correctly treated as one and the same concern the firm of Arbuckle Brothers and the firm styled Jay Street Terminal.

The fact that a large part of Arbuckle Brothers' sugar is sold f. o. b. Brooklyn is a matter of no importance.

The allowances are paid to Arbuckle Brothers in accordance with tariffs published and contracts entered into by the carriers. The fact that the allowances cover use of the Jay Street Terminal and all services performed there in connection with the transportation of the shipments does not change the character of the discrimination.

By confusing allowances paid to Arbuckle Brothers on their shipments of sugar with allowances paid to them on other shipments the carriers cannot make lawful a discrimination which would otherwise be unlawful.

The fact that bills of lading issued by the carriers show that their responsibility for the Federal Sugar Refining Company shipments begins at the Jersey shore is not, as between such shipments and those of Arbuckle Brothers, a matter of importance.

The right of the carriers to discriminate between Arbuckle Brothers and the Federal Sugar Refining Company does not depend upon the question of whether the latter changed its method of shipping to avoid such discrimina

231 U. S.

Argument for Federal Sugar Company.

The carriers' offer to lighter the Federal Sugar Refining Company shipments from Pier 24 to the Jersey shore free of expense to that company does not change the character of the discrimination which forms the basis of the Commission's order.

The lawfulness of the discrimination does not depend upon the question of whether the allowances paid to Arbuckle Brothers are more than reasonable compensation for the services performed by them in delivering their shipments of sugar on the Jersey shore.

The court erred in stamping with the seal of good faith the contracts made with the Jay Street Terminal for the purpose of giving Arbuckle Brothers an advantage over the Federal Sugar Refining Company and denouncing as a subterfuge the change in shipping arrangements made by the latter company to remove the discrimination thus brought about.

In support of these contentions see Gulf, Col. &c. Ry. Co. v. Texas, 204 U. S. 403; Int. Com. Com. v. Balt. & Ohio R. R. Co., 145 U. S. 263; Un. Pac. Ry. Co. v. Goodridge, 149 U. S. 680; Cin., N. O. & Texas Pac. Ry. Co. v. Int. Com. Com., 162 U. S. 184; Tex. Pac. Ry. Co. v. Int. Com. Com., 162 U. S. 197; Int. Com. Com. v. Cin., N. O. & Tex. Pac. Ry. Co., 167 U. S. 479; Wight v. United States, 167 U. S. 512; Int. Com. Com. v. Alabama Midland Ry. Co., 168 U. S. 144; East Tenn., V. & G. Ry. Co. v. Int. Com. Com., 181 U. S. 1; New Haven R. R. Co. v. Int. Com. Com., 200 U. S. 361; Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Int. Com. Com. v. Ch. G. West. Ry. Co., 209 U. S. 108; Int. Com. Com. v. Ill. Cent. R. R. Co., 215 U. S. 452; Int. Com. Com. v. Del., Lack. & West. R. R. Co., 220 U. S. 235; Un. Pac. R. R. Co. v. Updike Grain Co., 222 U. S. 215.

Mr. Ernest A. Bigelow for the Federal Sugar Refining Company:

Argument for Federal Sugar Company.

231 U.S.

The present arrangement between the carriers and Arbuckle and Jamison is a fraud upon the spirit and the intent and the letter of the acts to regulate commerce. The arrangement had its origin in a flagrantly unlawful preference of these great shippers and was devised to perpetuate such preference.

The form is the form of an innocent contract between a carrier and a dock and lighterage concern; the substance is that of an unlawful and unjust preference of one group of shippers as against their competitor.

Underlying the arrangement with these favored shippers is the fundamental purpose to handicap the independent company and prevent it from entering the markets on equal terms, i. e., to defeat the intention of Congress as manifested in the Act to Regulate Commerce. The lighterage limits could be expanded at will, in all directions, north, east and south, but never to Yonkers, for there was located the Federal's refinery.

The Commission's findings of fact, supported as they are by the evidence, will not be reviewed by this court, and its conclusions of law were correctly drawn.

So far as the conclusions embody findings of fact they appear not to be reviewable by the courts. A finding that there is unjust discrimination is a conclusion of fact. Int. Com. Com. v. D., L. & W. R. R. Co., 220 U. S. 235.

The transportation referred to in § 2 of the act does not begin until the lighters are made fast to their float-bridges on the New Jersey shore, that being the point of time at which the carriers accept the goods and assume responsibility therefor. Mo. Pac. Ry. v. McFadden, 154 U. S. 155; L. & L. Fire Ins. Co. v. R. W. & O. R., 144 N. Y. 200; Coe v. Errol, 116 U. S. 517, 528.

The single fact that Arbuckle and Jamison issue to themselves bills of lading in the name of the carriers does not suffice to overcome the legal conclusion arising from the fact that the sugar remains in their own possession and