mon carrier subject to the act engaged in the transportation of property to provide and furnish such transportation upon reasonable request therefor. While storage of property is clearly within the transportation service which carriers are obligated to furnish, their duty under these provisions extends only to that storage which is necessarily incidental to transporting such property. To be incidental business, the storage must be preliminary either to immediate transportation or immediate removal. State v. Southern Pac. Co., 52 La. Ann. 1822; 28 So., 372; Guaranty Claim of Central Elevator & Warehouse Co., 72 I.C.C. 169. It is clear that much of the storage service described of record is not such as the carriers are required by the act to furnish. Assuming, without deciding, that carriers by railroad subject to the act may not lawfully furnish, directly or indirectly, storage service which is not within their duties as common carriers, leaves the question as to what, if any, action we may properly take in the premises.

The Commission is a creature of statute, and its authority is derived from the act creating it. New England Divisions, 62 I.C.C. 513, affirmed, New England Divisions Case, 261 U.S. 184. Its jurisdiction is strictly statutory, and cannot be extended by implication over other subjects than those which the act defines. In Re Express Companies, 1 I.C.C. 349. The function and jurisdiction of the Commission is the regulation of commerce and not the regulation of railroads, except insofar as they are instruments of commerce. Philadelphia & R. Ry. Co. v. United States, 219 Fed. 988. The application of the act and the jurisdiction of the Commission cannot be limited or expanded by the provisions of a carrier's charter. State of Colorado v. United States, 271 U.S. 153. The Commission does not have jurisdiction to determine whether or not action by a carrier was ultra vires. Jaloff v. Spokane, P. & S. Ry. Co., 152 I.C.C. 758. Compare Certain-teed Products Corp. v. C.R.I. & P. Ry. Co., 68 I.C.C. 260. We have been unable to find any provision of the statutes conferring jurisdiction upon us to require a railroad to cease engaging in a business or activity not within its duty as a common carrier of interstate or foreign commerce. If such power exists, it must rest with the courts or with public bodies other than the Commission. This view, however, is confined to the bare question of authority to deal with activities, as such, which are not within and do not affect the railroad's duty as a common carrier.

A different situation is presented where the performance of such services is so related to the performance of common-carrier duties and of such character as to create a violation of the act, because it is established that in such circumstances the Commission is vested with ample authority. Merchant Warehouse Co. v. United States, 283

U.S. 501. It follows that we have authority to require the carriers to cease engaging in the commercial warehouse business, in cases where it is shown that the business is of such a nature that its conduct by the carrier necessarily results in violations of the law administered by the Commission. This conclusion necessitates consideration of various features of the warehousing performed by the respondents at New York as related to their common-carrier services. performed subject to the provisions of the Interstate Commerce Act and related acts.

As stated above, much of the warehousing or storage service under consideration here and the handling necessary in connection therewith is not storage incidental to transportation but is commercial storage. Compare Merchants Warehouse Co. v. United States, 44 Fed. (2d) 379, affirmed 283 U.S. 501.

Storage in transit permits the stopping of goods at an intermediate point en route and the reshipping therefrom to final destination at the through rate instead of the higher combination of local rates, to and from the transit point, which would obtain if the transit privilege was not granted. The transit privilege ordinarily is for the purpose of permitting some milling, manufacturing, or other trade process to be performed to the goods during the transit period. Each of the seven trunk-line respondents provide transit rules and rates for the storage of westbound freight at their warehouses in the Port of New York district, but these rules and rates vary greatly from the generally accepted storage-in-transit practices in the following particulars. The owners of the stored freight may, and oftentimes do, sell it locally, remove it by trucks or other means, withdraw it from consumption at any time or in any quantity by means suiting their business needs or inclination. Furthermore, if the goods remain in storage beyond the time limit imposed for in-transit storage the rates for storage remain the same as applied during such period. In the particulars named the storage partakes of the nature of commercial storage, and the storage involved is not, properly speaking, in-transit storage. The fact that it is designated as such in the carriers' tariffs does not invest it with the characteristics of in-transit storage.

The motive of the carriers in engaging in the commercial business is to induce shippers to use their rail facilities, and thereby increase the volume of traffic over their respective lines. The lower the aggregate charges for transportation and storage or warehousing services the greater the inducement. Those engaged solely in the warehousing business must depend entirely upon that business for revenue and profit. The rail carriers directly or through dominated and controlled subsidiaries seek out the larger shippers and offer them lower

rates for warehousing services and warehouse space than the private warehousemen. It appears of little concern to the railroads that the charges for the warehousing services and space furnished are not compensatory, because they expect to recoup any losses through the revenue derived from rail transportation.

The conflict of interests is not confined to rail carriers and private warehousemen, but concerns also the rail carriers as between themselves. The record plainly shows the struggle between the different rail carriers for supremacy in the matter of inducements without due regard for expenditures and profitableness of the business. The conflict of interest applies also as between larger shippers, controlling sufficient traffic to enable them to use the carrier-controlled warehousing facilities at noncompensatory rates, and smaller shippers who must pay the tariff rates for rail transportation and of necessity use the private warehousing facilities at higher rates than are charged by the carrier-controlled warehouses. It should be borne in mind that certain carrier-controlled warehousing facilities are not available to the general public, but only to selected concerns controlling large volumes of traffic. The tariffs provide that arrangements for storage space for westbound shipments in or on railroad piers or warehouses must be made in advance with respondents, or with outside warehouses if stored therein.

We cannot sustain the view that freight rates and storage or warehousing charges are not to be considered together because the warehousing services are in some instances conducted by separate corporations or companies. The record clearly shows that the interests of the carriers in those corporations or companies extend to complete an active domination and control. The substance and not the mere form of the relations should govern. Chicago, M. & St. P. R. Co. v. Minneapolis, C. & C. Assn., 247 U.S. 490, 501, Southern Pacific Term. Co. v. Interstate Commerce Commission, 219 U.S. 498. In the former case the Supreme Court said:

Much emphasis is laid upon statements made in various decisions of this court that ownership, alone, of capital stock in one corporation by another, does not create an identity of corporate interest between the two companies, or render the stockholding company the owner of the property of the other, or create the relation of principal and agent of representative between the two. [Pullman's Palace Car Co. v. Missouri P. R. Co., 115 U.S. 587, 29 L. ed. 499, 6 Sup. Ct. Rep. 194; Peterson v. Chicago, R. I. & P. R. Co., 205 U.S. 364, 391, 51 L. ed. 841, 852, 27 Sup. Ct. Rep. 513; United States ex rel. Atty. Gen. v. Delaware & H. Co., 213 U.S. 366, 413, 53 L. ed. 836, 851, 29 Sup. Ct. Rep. 527; Interstate Commerce Commission v. Stickney, 215 U.S. 98, 108, 54 L. ed. 112, 114, 30 Sup. Ct. Rep. 66; and United States v. Delaware, L. & W. R. Co. 238 (501) U.S. 516, 529, 530, 59 L. ed. 1438, 1443, 1444, 35 Sup. Ct. Rep. 873]; and it is argued that since the order of the Commission requires that the tracks, the title to which is in the Eastern Company, be treated as the property of the

stock owning companies, the effect of it, if enforced, will be to deprive the Eastern Company of its property without compensation, and to render valueless its capital stock owned by the Milwaukee and Omaha companies.

While the statements of the law thus relied upon are satisfactory in the connection in which they were used, they have been plainly and repeatedly held not applicable where stock ownership has been resorted to, not for the purpose of participating in the affairs of a corporation in the normal and usual manner, but for the purpose, as in this case, of controlling a subsidiary company so that it may be used as a mere agency or instrumentality of the owning company or companies. United States v. Lehigh Valley R. Co. 220 U.S. 257, 273, 55 L. ed. 458, 463, 31 Sup. Ct. Rep. 387, and United States v. Delaware, L. & W. R. Co., 238 U.S. 516, 59 L. ed. 1438, 35 Sup. Ct. Rep. 873. In such a case the courts will not permit themselves to be blinded or deceived by mere forms of law, but, regardless of fictions, will deal with the substance of the transaction involved as if the corporate agency did not exist and as the justice of the case may require.

In addition to furnishing warehousing services the rail carriers, or their subsidiaries, also rent space in stations, piers, or warehouse buildings to certain shippers for various purposes, and the rental exacted is not only below the prevailing rates but is noncompensatory. This is illustrated by the Erie lease from the city of New York of Pier 67, with the adjoining water rights, at an annual cost, including incidental expenses, of $58,542, where the pier space was subsequently subleased to the Willys Overland Company for $500 monthly. The Lackawanna lease to the Quaker Oats Company of space on Pier 41 is an example of securing competitive traffic by the offer of noncompensatory rental.

In Leases and Grants by Carriers to Shippers, 73 I.C.C. 671, 683, we said:

No justification exists for the leasing of railway lands to industries at a nominal rental charge. In cases where nominal or wholly inadequate rentals are reserved in leases it is evident, and indeed conceded, that traffic considerations are the moving cause so far as the carriers are concerned. Where it clearly appears that the traffic of the lessee is in part the consideration for the lease, the conclusion follows almost inevitably that the transaction amounts to a concession to the shipper-lessee, in violation of the Elkins Act and of sections 2 and 6 of the Interstate Commerce Act.

Certain of the carriers load and unload carload traffic, or make allowances to cover the cost of such loading and unloading for certain shippers, under tariffs or exceptions to the classification. This is contrary to the general practice with respect to carload traffic and to the provisions of the consolidated freight classification. An illustration of this character is the allowance made by the New York Central to the Auto Storage Company and the Mellish Company for unloading automobiles, including removal of material used in stowing the automobiles in the car. When carriers by their tariffs extend their service beyond their legal obligation as common carriers, as, for

example, beyond a delivery equivalent to team-track delivery, we have ordinarily found that such extra service must be paid for by the shipper in order to avoid preference and prejudice. General Electric Co. v. N. Y. C. & H. R. R., 14 I.C.C. 237; Pressed Steel Car Co. v. Director General, 93 I.C.C. 224, 109 I.C.C. 75; Carnegie Steel Co. v. Director General, 96 I.C.C. 527, 132 I.C.C. 689.

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It is also the general practice of the respondents to assume liability for actual loss or damage by fire, not to exceed the declared value, at a rate of 8 cents per $100 of value per annum. This is much below the rates ordinarily prevailing for such insurance, and in instances where the carriers reinsure they are compelled to pay a higher rate and bear the difference. The detailed facts as to these practices have previously been set forth.

Although the carriers charge all shippers alike the tariff rates for rail transportation, it is obvious that the according of noncompensatory warehousing charges and rental to some shippers and not to all is equivalent to a deduction from the charges for transportation to some shippers and not to others for like and contemporaneous service. This is clearly prohibited by section 2 of the act. It is likewise clear that the shippers receiving the benefit of such noncompensatory charges are given undue preference or advantage in violation of section 3 (1) of the act, over shippers who have no need of warehousing or storage, or others who for various reasons are compelled to pay the line-haul rate undiminished by any such benefits. These violations are added to in some cases by the free loading and unloading of carload freight, or payment of allowances therefor, and the handling of freight into and out of storage at less than compensatory rates. The fundamental purpose of the act is to require fair and equal treatment of shippers, "to compel the carriers as a public agent to give equal terms to all," "to cut up by the roots every form of discrimination, favoritism, and inequality ", and to "place all shippers upon equal terms." New York, N. H. & H. R. Co. v. Interstate Comm. Com., 200 U.S. 361; Louisville & Nashville R. Co. v. Mottley, 219 U.S. 467; United States v. Union Stock Yards, 226 U.S. 286. Carriers subject to the act cannot lawfully accomplish violations of these sections by resorting to separate corporations which they dominate and direct. United States v. Lehigh Valley R. Co., 220 U.S. 257; Chicago, M. & St. P. R. Co. v. Minneapolis C. & C. Assn., supra, United States v. Delaware, L. & W. R. Co., 238 U.S. 516. Nor can such violations be justified by reason of existing contracts. United States v. Union Stock Yards, supra; Louisville & Nashville R. Co. v. Mottley, supra.

Except the Central Railroad Company of New Jersey.