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Under the heading, “Terminal Roads, , jurisdiction than that which in any way Elevator Charges, and Private Cars," the occurred to it was necessary? following was said:

The act as it was enacted in 1887 defined "It has been suggested that the Congress the term "railroad” and the term "transshould prohibit railways from employing portation,” the latter as follows: “And the any agency or using any facility in the term 'transportation shall include all intransportation of property which is fur- strumentalities of shipment or carriage.” nished by the owner of the property. We The definition was very comprehensive, and should hesitate to recommend at this time needed not the mobilization of its denotaso drastic a measure as that. Assuming tion; but this subsequently was attempted. that such a law would be a constitutional Words, indeed, were multiplied—was meanexercise of authority, it would seriously in ing changed ? terfere with property rights which have In 1906 the term "transportation" was grown up under the present system. More: defined to "include cars and other vehicles over, there are many instances in which the and all instrumentalities and facilities of service can be rendered or the facility fur- shipment or carriage. ." The words nished more advantageously both to the are not much less general than the words shipper and railway, and without injury to of the Act of 1887. There is no advance the public, if provided by the shipper him- made by them or enlargement of meaning. self."

There was simply a useless tautology. But After commenting on the amendment to granting it was not and that Congress § 16 and the added § 16a, the Commission deemed a special declaration of things to explained that,

be necessary, such declaration did not alter "It will thus be seen that the substan- the relation of the companies to them. The tial amendments proposed are few in num-duty which attached to "instrumentalities" ber and easily understood, the remaining of the Act of 1887 attached to the things changes being merely such as are needful covered by its comprehensive generality, to harmonize other parts of the act with to the things declared in the amendment of the main amendments ... In brief, the 1906, that is, to "cars," "vehicles," "faciliproposed measure amends certain sections ties." And this duty under the Act of of the act to regulate commerce and is con- 1887, we have seen, had, in the opinion of fined to such recommendations are the Commission, the sanction only of the deemed necessary to effect its intended pur-common law. Under the amendment the pose, and thereby furnish adequate protec. most that can be said is that the duty is tion against excessive and discriminating particularized. Its sanction is not encharges.”

larged. It will be observed that there is not one But other words occur which, it is conword in the report that indicates that there tended, have such effect. These words are: was a necessity or desire for the power exer- “And it shall be the duty of every carrier cised in the order under review. Indeed,

to provide and furnish such transthere was directly expressed an approval portation upon reasonable request therefor of private cars, and the opinion declared that they were a facility which could be This, however, is but the expression of a furnished more advantageously both to the necessary implication. It was useless to shipper and the railroad, without injury declare that whatever a carrier must do, he to the public, if provided by the shipper must do “upon reasonable request.” The himself, and the recommendation was that duty having been imposed, it necessarily they be brought under the jurisdiction of could be demanded. But the expression of the Commission and thereby prevent oppres- the right, if it needed 'expression, adds sive and discriminatory practices; the prin- nothing of indication to the previous words ciple being, to borrow from another, that of the tribunal by which the demand was to all services incident to transportation, be enforced. whether primary (carrying the goods) or But it is said the duty having explicit accessorial (caring for the goods in transit declaration, the power to enforce it was whenever such care calls for special facili- found in § 12 as amended March 2, 1899, ties or special equipment), should be sub- as follows: "And the Commission is hereject to the same supervision and regulation. by authorized and required to execute and

But is there anything in the words of the enforce the provisions of this act.” (25 amendment which exhibits on the part of Stat. at L. 855, 858, chap. 382, Comp. Stat. Congress a larger knowledge of conditions 1913, SS 8569, 8576.) than the Commission had, and that con- But this casts us back to our general gress, in a broader comprehension and considerations, to which we may only add judgment of the conditions and their that there was no question of the duty of remedy, gave the Commission a greater I carriers either under the Act of 1887 or under the amendment of 1906. It was their or otherwise in violation of any of the produty under both to furnish the instrumen- visions of” the act, the Commission is autalities of transportation. The question is thorized and empowered to determine and whether, under the latter, as under the prescribe what shall be the just and reaformer, jurisdiction to enforce the duty was sonable rate or rates and "what individual at common law in the courts, or under the or joint classification, regulation, or pracstatute and in the Commission; and we have tice is just, fair, and reasonable," and make seen that it was the view of the Commission an order that the carrier shall cease and dethat the remedy was in the courts, and sist from the charging of excessive rates, that the amendment of 1906 was not in and shall adopt the classification and contended to and did not change the remedy. form to and observe the regulation or pracIn other words, that Congress in effect ac, tice prescribed; the order to continue such cepted the explanation of the Commission time, not exceeding two years, as shall be and approved its decisions. We repeat, the prescribed by the Commission. amendment of 1906 was drawn by and rec- Applying the section, it is contended that ommended by the Commission, and it may the neglect to provide or certainly the rebe assumed was not intended to have nor fusal to furnish tank cars is a "practice," given larger import in the law than it had and became especially so by the reply made in the recommendation. United States v. by the railroad to the request to furnish Louisville & N. R. Co. 236 U. S. 318, 333, them. et seq., 59 L. ed. 598, 605, 35 Sup. Ct. Rep. Let us test the contention and see where 363.

it takes us. The request was for a special There was amendment in 1910 [36 Stat. facility, a combination of package and at L. 550, 551, chap. 309, Comp. Stat. 1913, car, and the question, then, is whether the 88 8581, 8583], not of g 1 in any particu- neglect to provide it or to furnish it was a lar relevant to our discussion, but of $S 13 "practice” within the meaning of g 15. The and 15. It was said by the committee far-reaching effect of an affirmative answer which reported them for consideration that is instantly apparent, and there must be under § 15, as it then stood, the authority hesitation to declare it from the use of so of the Commission to enter an order was inapt a word as "practice.” Following a "confined to the subject of rates for trans- well-known rule of construction, we must portation and regulations or practices 'af- rather suppose its association was intended fecting such rates, and the establishment to confine it to acts or conduct having the of through routes where 'no reasonable or

same purpose as its associates. And there satisfactory through route exists.'And were many such acts for which the word the committee added that as recommended could provide,-practices which confused to be amended § 15 "will have its scope the relation of shippers and carriers, burlargely increased and the jurisdiction of dened transportation, favored the large shipthe Commission will be much enlarged;” per, and oppressed the small one. These and that "by the amendment the Commission have illustrations in decisions of the Comis given jurisdiction to enter orders not mission. And this was purpose enough, only regarding rates, but regarding classi- remedied all that was deemed evil in prifications, regulations, or practices, whether vately owned cars of any type. Beyond they affect rates or not, and make orders that it was not necessary to go; beyond requiring conformity thereto."

that there were serious impediments to go"Practices" were not otherwise or pre-ing; and we cannot but believe that if becisely defined either in the report or in the yond that it was intended to go, there amendment recommended and as finally would have been explicit declaration of the passed. Regarding only its broad generality intent, with such provision as to notice and anything may be asserted of it; regarding time and preparation as its consequences its context and the conditions which exist- would demand; not ambushed in obscurity ed, an immediate limitation of it is indi- and suddenly disclosed by construction to cated, made necessary, as we shall present. turn accepted custom into delinquency, a ly show.

construction that could be disputed and was Section 15 provides that whenever, after disputed. full hearing, as provided by § 13, the Com- Three commissioners out of seven dissent. mission should be of opinion that any in-ed, they declaring that if the act conferred dividual or joint rates collected by a com- power upon the Commission to order a carmon carrier or "that any individual or joint rier to enlarge its complement of cars it classifications, regulations, or practices would follow that the Commission had also whatsoever of such carrier or carriers sub- the power to order enlargement of terminal ject to the provisions” of the act are "un facilities, increase in the number of locomojust or unreasonable or unjustly discrimi- tives, and extension of tracks or branches. natory, or unduly preferential or prejudicial In fact, it was said that no facility of transportation would be exempt. The purpose | aggregate, only 303 tank cars. The privateof the provision reviewed was declared to ly owned tank cars east of the Mississippi be the regulation of facilities possessed by aggregate about 27,700, and the total numthe carrier, that there should be no unjust ber of tank cars owned in the United States discrimination, and the plain intent to be was given as approximately 40,000.” that the shipper should not be required to This, then, was the situation of the rail. deal with any other than the carrier. And road, not dissimilar to that of other railthis, as far as we can glean from the roads, not therefore created in deliberate extensive congressional literature, was the fault, but in accommodation to conditions end sought. In other words, it was on ac- useful to shippers, advantageous to the count of the abuses of the private car sys. railroad, beneficial to the public, as the tem, not in its uses, that legislation was Commission had declared; and yet a change urged.

is suddenly required. The burden of the There was some sentiment outside of the requirement we shall presently notice. Commission for the abolition of the private Of course, if there is a duty upon a carcar system, but abolition was not attempt rier to furnish tank or other special cars ed. It would have been a short cut to the upon request, its enforcement cannot be solution of the problems and could easily arrested by the burden it imposes; but here have been accomplished by requiring the again the thought obtrudes, which we have railroads to furnish all of the equipment already expressed-it may be to tiresome necessary for taking care of all kinds of extent—that if Congress had intended such traffic. But neither the government nor the consequence with all that it implies of exCommission contends for such an extreme, pense, directly and indirectly, it would not and to forestall the charge that the order have left its intention to be evolved from has such tendency represents that the duty obscure language, but would have put it in of the carrier to furnish special equipment explicit declaration and with' notice and is not absolute, but relative to the condi. time for accommodation to it. tions of trade and the business of the It is to be remembered that the tank shipper. This weakens the principle upon car is both package and car, must have which the duty is based. If there be a special mechanical means of loading and duty, it would seem necessarily to be uni- unloading. May these, too, be ordered ? versal. And such contention is growing. Are they not a “method and manner of pre

A friend of the court appears in the form senting, marking, packing, and delivering of a salt company and presents an argu- property for transportation,” to use the lanment in support of the order of the Com-guage of § 1, as amended ? mission and asserts the right to a special It is difficult to particularize all that the equipment for the transportation of salt in ruling of the Commission implies of power. bulk.

What of omission or commission in the car. Little more need be said. Private cars rier's relation to the public may not be came into existence as conveniences or said to be a practice or practices in the necessities to particular businesses, develop- broad sense attempted to be given to those ing by degrees and differentiating accord- words? A railroad's powers are its duties, ing to conditions. It was said in argu- bearing, of course, obligations; and all of ment that there are different kinds of tank them by the asserted construction are swept cars for different oils and liquids, and there under the jurisdiction of the Commission, are cars for live stock, fruit, live poultry, -So swept by a single word, not of itself milk, and, as we have seen, salt in bulk. apposite, and determined besides by its asWhat others there are neither the record sociation against the contention. This was nor the argument has given us information, apparent to the dissenting Commissioners nor the extent of their specialization. How and repelled their concurrence. Well might ever, the information is not needed. The they have recoiled from going to such exfacts of the present case illustrate the con treme upon doubtful implication, and have dition of the carriers of the country. De been impelled to declare, as they did describing it, the Commission says:

clare, that if such power was given, it logi“The bulk of the movement of refined oil cally and necessarily extended to every is in tank cars owned by the shippers. In facility of transportation. 1887 the Pennsylvania Railroad acquired As to whether this is desirable, we ex1,308 tank cars, some of which have subse- press no opinion, and we only mean now quently been sold to independent refineries. to say that it was not expressed as desirDefendant now owns 499 tank cars, all that able in the statutes which we have conremain of those purchased in 1887, and 482 sidered, nor was there a word or a line of which are furnished to shippers of oil from the Interstate Commerce Commission, located on its lines. The other railroads so far as the record shows or intimates, of east of the Mississippi river own, in the recommendation of such result. Indeed, there is intimation that such result would V. W. R. Co. 241 U. S. 55, 60 L. ed. 885, be radical, and, as said by the railroad 36 Sup. Ct. Rep. 501. company, “the Safety Appliance Acts indi. The Hardwick Elevator Case passed upon cate that when Congress contemplates the a law of Minnesota, known as the Minneimposition of obligations with respect to sota Reciprocal Demurrage Law, which the equipment of carriers, it covers the sub- made it the duty of a railroad company on ject by careful, specific rules.” And we demand from a shipper to furnish cars for may further say with the company that "it transportation at terminal points within is pertinent to inquire why committees of forty-eight hours and at intermediate points Congress should consider, as they continue within seventy-two hours after such deto do from time to time, the wisdom of demand, Sundays and legal holidays excepted. volving on carriers the duty to furnish A penalty was imposed for each day's desteel coaches for passenger traffic, if al- lay. This court held that by § 1 of the ready the provisions of the act to regulate Hepburn Act Congress had legislated con. commerce are broad enough to cover mat-cerning the delivery of cars in interstate ters of this kind ?" And there is strength commerce by carriers subject to the act. in the observation of the railroad company This was based upon the definitions of § 1 that if the argument based upon the word of the provisions of $8 8 and 9. The ques. "practice” or “practices” were sound, “it tions in the case were not those in the prescould be contended with equal reason that ent case. The kinds of equipment were not every detail of railroad operation is a prac- involved nor the questions dependent upon tice within the meaning of the act; why them. The only question was as to whether should the Commission ask that it be em Congress had entered the field of regulapowered to require the use of the block sig. tion. nal system? (Report of 1913, page 82.) In Yazoo & M. Valley R. Co. v. GreenWhy should the Commission make this re- wood Grocery Co. there was also involved a quest if, because of its jurisdiction with statute which penalized delays in delivering respect to practices, it is already endowed cars. It was held to be within the decision with power to regulate the details of opera- of the Hardwick Elevator Case, as it untion of carriers?"

doubtedly was. The United States and the Commission In the Harris Case, the Carmack Amend. insist that they have authority of cases for ment (34 Stat. at L. 593, chap. 3591, Comp. their two fundamental propositions, to wit: Stat. 1913, § 8592] was decided as not ex(1) That it is the duty of the railroad to cluding a state statute allowing an attorfurnish equipment for the transportation ney's fee in certain actions based on claims of products; and (2) that the Commission for small amounts against railway comhas the jurisdiction to enforce that duty. panies. It has no relevancy to the present

The authorities upon the first proposition case. we are not concerned to review. The duty, The Ellis Case grew out of a right assert. as far as this question is concerned, may be ed by the Interstate Commerce Commission admitted,-certainly admitted in its general to inquire whether Armour & Company, sense. But we need not pause to distin- shipping packing-house products in comguish its application in the cases to special merce among the states, was controlling the equipment as distinguished from common Armour Car Lines and using them as a deequipment, or how much the decisions were vice to obtain concessions from the pubbased upon the belief of the shipper, justi. lished rates for transportation. A series fied or encouraged by the railroads, that of questions were put to a witness in regard the equipment required would be furnished. thereto which he refused to answer, and

With the second proposition we are con proceedings to compel his testimony were cerned, and a consideration of the cases be instituted. A question of the power of the comes necessary, as they are cases in this Commission was presented and that was court and are cited to sustain the power of made to depend upon whether the Armour the Commission. They are as follows: Chi- Car Lines was a common carrier subject to cago, R. I. & P. R. Co. v. Hardwick Farm- the Interstate Commerce Act. It was reers Elevator Co. 226 U. S. 426, 57 L. ed. plied that the Car Lines Company had no 284, 46 L.R.A.(N.S.) 203, 33 Sup. Ct. Rep. control over the motive power and move174; Ellis v. Interstate Commerce Commis- ment of the cars and was not a common sion, 237 U. S. 434, 59 L. ed. 1036, 35 Sup. carrier subject to the act. And this was Ct. Rep. 645; Yazoo & M. Valley R. Co. v. said: "It is true that the definition of Greenwood Grocery Co. 227 U. S. 1, 57 L. transportation in § 1 of the act includes ed. 389, 33 Sup. Ct. Rep. 213; Missouri, K. such instrumentalities as the Armour Car & T. R. Co. v. Harris, 234 U. S. 412, 58 Lines lets to the railroads. But the defini. L. ed. 1377, L.R.A.1915E, 942, 34 Sup. Ct. I tion is a preliminary to a requirement that Rep. 790; Menasha Paper Co. v. Chicago & the carriers shall furnish them upon reasonable request, not that the owners and vest the company of its duty as a carrier. builders shall be regarded as carriers, con. This might be if there was a duty; but the trary to the truth." The language was United States seeks to establish the duty perfectly apposite to the question under from the offer of the company, and must consideration, the relation of the Armour take the offer as made, and cannot, nor can Car Lines to the Armour Company and to the Commission, ignore its explicit qualithe railroad. The cars the latter obtained fication that the company assumed no obli. from the Car Lines Company constituted gation to furnish tank cars. The finding of the equipment of the railroad company and the Commission, therefore, was one of law, were, of course, subject to the provisions and not of fact, and is reviewable. of the Interstate Commerce Act.

The railroad company, besides the conten. The question with which the present case tions of want of power in the Commission is concerned was not presented to the court to make the order under review, object to nor intended to be decided. The testimony it (1) in that it is defective because it sought by the Commission was to expose requires the company to supply cars for and prevent what were supposed to be dis- movement over the lines of other carriers; criminatory practices, and the right to re- and (2) that it is not administrative in quire the testimony depended, it was the character, but is uncertain, indefinite, and effect of the decision, upon the relation of unlawful. the Armour Company to the Armour Car In support of the first contention the railLines through the railroad, and whether road company points out that the company what was paid to the Armour Car Lines owns more tank cars than all of the other was in effect paid to the Armour Company carriers east of the Mississippi river, and made a means of discrimination. This amounting at the time of the hearing to view was rejected and it was said: "It 499 cars. The total ownership of other cars does not matter to the responsibility of the east of the Mississippi river amounted to roads whether they own or simply control | 303, and the privately owned tank cars to the facilities, or whether they pay a greater 27,700. It therefore appears, it is said, or a less price to their lessor,"—the lessor that the railroad ownership is less than 3 of that case being the Armour Car Lines; per cent of the total ownership, and that and, as it was not shown that it was mere- of this 3 per cent the company is furnishly the tool of the Armour Company, it had ing more than half. The company, thereimmunity from the investigation. The case, fore, asserts that if it be compelled to furtherefore, is not authority for the proposi.nish all of the tank cars required for the tion which it is urged to support.

transportation of oil on its line, irrespecMenasha Paper Co. v. Chicago & N. W. tive of their destination, it is obvious that R. Co. needs no comment. It quotes but a burden out of all proportion is placed attempts no explanation of the words of upon it. It further complains that although the statute that is relevant to our present the New York Central Railroad serves the inquiry. Indeed, in all of the cases the oil companies equally with it, no order is points of inquiry and decision were different made against that company, but, on the confrom the case at bar. They declared or entrary, the entire burden is devolved upon forced or recognized the general duty of it. carriers under the particular facts and the In support of the second contention, the law to which the carriers were subject. company asserts that the order of the Com.

It is next contended by the United States mission is not administrative is indicated that the railroad has held itself out specific- by decisions of this court in actions for ally to carry oil in tank cars, and the failure to furnish cars. The cases fact, it is said, has been found by the Louisville & N. R. Co. v. F. W. Cook Brew. Commission and is not reviewable, citing ing Co. 223 U. S. 70, 56 L. ed. 355, 32 Sup. United States v. Louisville & N. R. Co. 235 Ct. Rep. 189 (1912); Eastern R. Co. v. U. S. 314, 320, 59 L. ed. 245, 250, 35 Sup. Littlefield,' 237 U. S. 140, 59 L. ed. 878, 35 Ct. Rep. 113. We are unable to assent. Sup. Ct. Rep. 489 (1915); Pennsylvania R.

The railroad company in its answer to Co. v. Puritan Coal Min. Co. 237 U. S. 121, the petition before the Interstate Commerce 59 L. ed. 867, 35 Sup. Ct. Rep. 484 (1915); Commission alleged that rule 29 of the Illinois C. R. Co. v. Mulberry Hill Coal Co. official classification No. 39, providing rates 238 U. S. 275, 59 L. ed. 1306, 35 Sup. Ct. for articles in tank cars, stated that the Rep. 760 (1915). carriers whose tariffs were covered by such Again, it is charged that the order exclassification did not assume any obligation pressed by a legislative principle has the to furnish tank cars. There is a concession generality of such principle without any in the brief of the Interstate Commerce criterion of application. The order requires Commission that such was the published the company to "provide

upon tariff, though contesting its efficacy to de- reasonable request and reasonable notice,

are:

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