
    Baltimore & Ohio Railroad Co., Appellant, v. Public Service Commission.
    
      Railroads — Rates—Inconsistent schedules — Public Service Commission.
    
    Where at the time an appeal from an order of the Public Service Commission is called for argument, it appears that important and material conditions exist which were nonexistent at the time the order was entered, the order will be reversed and set aside, and the record remitted for such further consideration by the commission as may be warranted. This applies where the order appealed from involves a schedule of rates for the transportation of cream and milk on a branch of a railroad, while a different schedule governs the carrying charge of all of the milk and cream carried by the railroad company either in interstate or intrastate commerce.
    Argued Nov. 1, 1917.
    Appeal, No. 137, Oct. T., 1916, by plaintiff, from order of Public Service Commission fixing rates in case of Baltimore & Ohio Railroad Company v. Public Service Commission and Somerset Dairy Co-Operation et al.
    Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.
    Reversed.
    Petition to the Public Service Commission to fix rates for the transportation of milk and cream.
    From the record it appeared that on April 15, 1915, petitioners, Somerset Dairy Cooperation et al. of Somerset County, filed a complaint with the Public Service Commission averring that they were shippers of milk and cream on the Somerset and Cambria Branch of respondent’s railroad extending from Rockwood to Johns-town, Cambria County, a distance of about forty-five miles; 38.2 miles is the longest haul for milk; that respondent had advertised to take effect on April 15,1915, a new tariff raising some of its rates for transportation of milk and cream on that branch of its road, and that such rates were unreasonable.
    An answer was filed and testimony was taken. On March. 22, 191G, an order was made fixing a schedule of rates for the transportation of milk and cream from points on the Somerset and Cambria Branch of the Baltimore & Ohio Railroad to the City of Johnstown. The Baltimore & Ohio Railroad Company appealed.
    
      Error assigned, amongst others, was as follows: The Public Service Commission erred in establishing the rates proposed in its order, because as appeared in the evidence the rates of appellant which it was proposed should go into effect in Pennsylvania on the 15th of April, 1915, were rates on the same commodities charged and collected by respondent on its interstate traffic through, into and out of Pennsylvania, so that the making of said order by the Public Service Commission of Pennsylvania if complied with directly produces discrimination between property, persons and places concerned in intrastate commerce as against the same respectively concerned in interstate commerce over appellant’s lines extending through Pennsylvania, in violation of the applicable acts of Congress of the United States, and of the Constitution of Pennsylvania.
    
      W. B. Linn, with him H. B. Gill, for appellant.
    
      Ernest O. Kooser, for intervenor.
    April 22, 1918:
   Opinion by

Head, J.,

We are persuaded important and material conditions now exist which were nonexistent at the time the order of the Public Service Commission here appealed from, was entered. As we view the situation now, the commission should reexamine this case. When it was submitted, without argument, B. & O. R. R. v. Pub. Service Com. Wilson intervenor, 66 Pa. Superior Ct. 403, was pending. That case, originating on the Washington branch of the appellant railroad, probably invited and certainly received from the commission a broad order covering a large question. After a judgment had been entered by this court in the Wilson case, the complaint, on which the proceeding rested, was withdrawn, and it necessarily followed the rates there challenged remain operative. If the order here complained of continues to be controlling, there will be in force one schedule of rates for the transportation of cream'and milk on one, not conspicuously extensive, branch line of the system hefetofore operated by appellant. There will be at the same time a different schedule, each with the force of public law behind it, governing the carrying charge of all of the milk and cream carried by appellant, either in interstate or intrastate commerce. We cannot discover in the record anything to warrant us in assuming the commission then foresaw that such a result would follow from, the order entered.

Meantime, there has been action taken by the Federal government that may have some radical effect on the rates to be charged by a great railroad system engaged in the transportation _of the countless things which men _ must use.

We have concluded, therefore, this case should be further considered by the commission, and the record is remitted to them for that purpose.

The order of the Public Service Commission is reversed and set aside, and the record is remitted for such further consideration by the commission as may be warranted. The costs of this appeal to follow the final order to be hereafter entered.  