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safe and suitable boilers and appurtenances, an intelligible measure of the duty of plain. thereto (chap. 103, 36 Stat. at L. 913, Comp. tiff in error, and is therefore a denial of Stat. 1913, § 8630). The latter act was due process of law. Upon this point the among those referred to in the Georgia Case, state court held, following its previous deand held not to oust the authority of the cision in Chicago, I. & L. R. Co. v. Railroad state because it did not appear either that Commission, 175 Ind. 630, 638, 95 N. E. 364, Congress had acted, or that the Interstate that the Railroad Commission itself, by vir. Commerce Commission, under the authority tue of the act, had power to grant relief of Congress, had established any regulations through a rehearing, and that without first concerning headlights. The amendment of resorting to that method of procedure plain1915 extends the provisions respecting in. tiff in error was not entitled to have the spection, etc., to the entire locomotive and order set aside by the courts. The general all its appurtenances. Whether those pro- rule is that one aggrieved by the rulings of visions authorize the Interstate Commerce such an administrative tribunal may not Commission to prescribe any particular type complain that the Constitution of the Unitof headlight, or other appliance, is a ques-ed States has been violated if he has not tion upon which we need not now pass, for availed himself of the remedies prescribed the reason that the decision of the supreme by the state law for a rectification of such court of Indiana, refusing an injunction to rulings. Bradley v. Richmond, 227 U. S. restrain the enforcement of the state Com- 477, 485, 57 L. ed. 603, 606, 33 Sup. Ct. mission's order, was rendered and judg. Rep. 318. And since the record shows that ment thereon entered before the passage by plaintiff in error and its associates were acCongress of the act referred to. Obviously, corded a rehearing upon the very question of we cannot say that by that decision and modification, but abandoned it, nothing judgment any right of plaintiff in error un- more need be said upon that point. der a law of the United States was in.

Judgment affirmed. fringed, within the meaning of g 237, Judicial Code, when the law creating the Mr. Justice Clarke took no part in the supposed right was not enacted until after consideration or decision of this case. the judgment. If, however, by virtue of the provisions of the Act of 1915, or of any action heretofore or hereafter taken by the

(242 U. S. 208) Interstate Commerce Commission under it, UNITED STATES and Interstate Commerce plaintiff in error is entitled to an injunc

Commission, Appts., tion against the further enforcement of the order of the state Commission, that right PENNSYLVANIA RAILROAD COMPANY.

(No. 340.) may be asserted in another action and will not be prejudiced by our present decision.

With respect to the question of due proc-UNITED STATES, Interstate Commerce ess of law, it is unnecessary to determine

Commission, and Crew-Levick Company, whether the 14th Amendment requires that

Appts., state action, legislative in its nature, of the character of the order of the Railroad

PENNSYLVANIA RAILROAD COMPANY.

(No. 341.) Commission, shall be preceded by notice and an opportunity for a hearing. In the case COMMERCE 85 — INTERSTATE COMMERCE

COMMISSION-POWERS – REQUIRING CARbefore us, the supreme court of Indiana

RIER TO FURNISH TANK CARS - "TRANSconstrued the act of 1909 as supplemental PORTATION." to the act of 1905, which, as amended in 1. The Interstate Commerce Commig. 1907 (Acts 1907, p. 469, § 6; Burns's Anno. sion was given no power to order a carrier Stat. [Ind.) 1908, § 5536), gave to any car. to provide and furnish to shippers tank rier or other party dissatisfied with any

cars for interstate shipments of petroleum order made by the Commission a right to products by the amendment of the Act of resort to the courts in an action to sus. 3591, Comp. Stat. 1913, $ 8563), to the Act

June 29, 1906 (34 Stat. at L. 584, chap. pend it or set it aside. Since the order in of February 4, 1887 (24 Stat. at L. 379, question was made after notice and a full chap. 104), § 1, defining the term “transhearing, and plaintiff in error had and exer- portation" as including "cars and other cised the right to a judicial review by ac vehicles and all instrumentalities and facili. tion at law, we concur in the view of the ties of shipment or carriage, irrespective of state court that there has been in this re-ownership or of any contract, express or spect no deprivation of property without implied, for the use thereof and all services

in connection with the receipt, delivery, due process of law. The only other point requiring mention is tion, refrigeration or icing, storage, and

elevation, and transfer in transit, ventilathe insistence that the order is so indefinite handling of property transported," and mak. and uncertain in its terms as not to furnishing it the duty of every carrier subject to

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

au

the provisions of the act "to provide and quired to provide, on or before August 15, furnish such transportation upon reason-1915, and thereafter to furnish, upon rea. able request therefor," although by $ 12 sonable request and reasonable notice, at as amended by the Act of March 2, 1889 complainants' respective refineries, tank cars (25 Stat. at L. 858, chap. 382, Comp. Stat. in sufficient number to transport said com1913, § 8576), the Commission was thorized and required to execute and en- plainants’ normal shipments in interstate force the provisions of the act, and by commerce. § 13, as amended by the Act of June 18, “And it is further ordered, that this order 1910 (36 Stat. at L. 550, chap. 309, Comp. shall continue in force for a period of not Stat. 1913, § 8581), was given power to less than two years from the date when it enter orders not only regarding rates, but shall take effect.” regarding classifications, regulations, or

The time of compliance was subsequently practices, whether affecting rates or not. If any duty to furnish such cars exists, it extended to November 15, 1915, on which is enforceable in the courts, not by 'the date the railroad company brought this suit Commission.

to enjoin the enforcement of the order. A (Ed. Note.--For other cases, seo Commerce, preliminary injunction was prayed, and, upCent. Dig. & 138; Dec. Dig. Omw 85. For other definitions, see Words and Phrases, 227 Fed. 911. To review that action this

on a hearing by three judges, was granted. First and Second Series, Transportation.) COMMERCE 95 — INTERSTATE COMMERCE appeal is prosecuted. COMMISSION-JUDICIAL REVIEW – Facts. The Commission made quite elaborate

2. A finding of the Interstate Commerce findings, which, however, we do not think it Commission that a carrier has held itself is necessary to quote in full. It found the out to carry oil in tank cars is one of law, production of the oil companies, and the not of fact, and therefore is reviewable in the courts, where it is based upon a rule in following additional facts: the official classification providing rates

(1) That 91 per cent of the oil produced for articles in tank cars, which states that by the Paraffin Company was shipped in the carriers whose tariffs are covered by tanks, 14 per cent in barrels loaded in cars such classification assumed no obligation to other than tank cars, and 74 per cent in furnish tank cars.

pipe lines, while of the shipments made by [Ed. Note.-For other cases, see, Commerce, the other company 86.8 per cent moved in Cent. Dig. § 145; Dec. Dig. 95.]

tank cars, 4.7 per cent in barrels and 8.5 [Nos. 340 and 341.]

per cent in pipe lines. Argued October 18 and 19, 1916. Decided (2) For a long time the bulk of refined December 11, 1916.

oil in the United States has been shipped

in tank cars and at present 91 per cent is so WO APPEALS from the District Court transported. The railroad has been using

District of Pennsylvania to review a decree ity of the cars is found, and they are so enjoining the enforcement of an order of the constructed that they may be rapidly loaded Interstate Commerce Commission, requir. at the refineries, and jobbers and dealers in ing a carrier to provide and furnish to ship- refined oil throughout the country have the pers tank cars for interstate shipments of proper and necessary facilities for unloadpetroleum products. Affirmed.

ing the cars by gravity at their various See same case below, 227 Fed. 911. stations.

(3) The only other method of transportStatement by Mr. Justice McKenna: ing oil is in barrels or similar containers,

On petition of the Pennsylvania Paraffin the cost of which is from 31 to 33 cents a Works and the Crew-Levick Company the gallon above the cost of transportation in Interstate Commerce Commission made the tank cars, and this makes such method of following order:

transportation practically prohibitive, and "It is ordered, that the Pennsylvania the refusal of the railroad to furnish an adeRailroad Company be, and it is hereby, no- quate supply of tank cars would tend to tified and required to cease and desist, on drive out of business refiners who are unor before August 15, 1915, and thereafter able to supply themselves with enough cars to abstain, from refusing upon reasonable to move their own products; and witnesses request and reasonable notice therefor to for the railroad admitted that tank cars provide and furnish tank cars to the com- are an economic necessity for the transporplainants herein for interstate shipments tation of refined products. of petroleum products, which refusal has (4) In 1887 the railroad acquired 1,308 been found in said report to be in viola- tank cars, some of which have since been tion of the provisions of the act to regulate sold to independent refiners, but it owned commerce and amendments thereto.

at the time of the hearing 499 cars, of which "It is 'further ordered, that said defend 482 are furnished to shippers of oil located ant be, and it is hereby, notified and re

on its lines. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(5) At the time of the hearing the Paraf- , § 8563] and its amendments, has thus far fin Company owned 54 tank cars and the left carriers free to exercise their own judg. Crew-Levick Company 57; and it was testi- ment in the purchase, construction, and fied that these companies for five or six equipment of their roads and in the selecyears have daily made inquiry for the de- tion of their rolling stock.” Indicating that livery of cars to them, and that formal or the law conferred upon the Commission the ders for cars have been constantly on file power to prevent and redress unfair pracin the railroad's offices.

tices and discriminations, the court further (6) On November 11, 1912, shortly before said: "We find nothing in the law which the filing of the complaints before the Com- confers upon the Commission power to commission, complainants served notice upon pel a carrier to acquire facilities it does not the railroad company, requesting it to fur- possess, or to acquire better facilities than nish a sufficient number of tank cars to ship those it possesses, not with the object of respectively 450,000 gallons of oil per month preventing discrimination and preferences, from the Paraffin Company's refinery at but in order that the shipper may have Titusville, and 600,000 gallons per month larger, better, and perhaps more economical from the Glade (Crew-Levick Co.) Oil facilities.” Works at Warren.

And coming to consider the question of To the request of complainants, the rail. power conferred by the Interstate Commerce road company replied:

Act of 1887, as amended in 1906 [34 Stat. "We beg to say that the railroad company at L. 584, chap. 3591, Comp. Stat. 1913, § is not prepared to increase its present tank- 8563], the court decided that the amendcar equipment, but is prepared to transport ment "added nothing to the original duty of the commodities in question when properly the carrier as prescribed by the original contained in barrels or other similar react and as interpreted by the Commission, tainers at rates that are fair, reasonable, and vested in the Commission no increase and nondiscriminatory."

of power over cars as instrumentalities of

shipment." Solicitor General Davis and Mr. Robert To this proposition the United States and Szold for the United States.

the Commission oppose the contentions that Mr. Joseph W. Folk for the Interstate "it is the duty of every interstate carrier Commerce Commission.

to provide and furnish upon reasonable reMessrs. John G. Johnson, Thomas quest such cars as are reasonably necessary Patterson, Frederic D. McKenney, and for handling the normal traffic of which it Henry Wolf Bikle for the Pennsylvania is a common carrier," and that the CommisRailroad Company.

sion is given jurisdiction to enforce the Messrs. Charles D. Chamberlin and David duty. Wallerstein for the Crew-Levick Company. The power of the Commission has been

Messrs. Samuel B. Clarke and Charles W. given precedence and dominance in the arguAtwater as amici curiæ.

ment, the extent of the duty of carriers

coming in secondarily, though important to Mr. Justice McKenna, after stating the be considered. In other words, the main case as above, delivered the opinion of the question presented is, whatever be the duty court:

of carriers as to the equipment they must The question in the case is, Has the Com- have or furnish, whether the Interstate Commission the jurisdiction exercised by the merce Commission is the tribunal to enforce order? It is not denied that the Commis. the duty. sion has power over the general equipment A comparison of the act as passed in 1887 of a carrier, but it is denied that it has with the amendment of 1906 becomes necespower to require "vehicles of a special type sary, and a consideration of the rulings unhaving no reference to the safety of trans. der the former as an interpreter of the latter. portation," and to this distinction the argu- The Act of 1887 (24 Stat. at L. 379, chap. ment of counsel for the railroad company 104, Comp. Stat. 1913, § 8563) provided is addressed.

thatThe judgment of the district court had “The term 'railroad' as used in this act somewhat broader basis. The court said: shall include all bridges and ferries used or "The act to regulate commerce does not con. operated in connection with any railroad, fer upon the Interstate Commerce Commis- and also all the road in use by any corporasion all power over cars and other instrution operating a railroad, whether owned or mentalities of shipment.” And that, aside operated under a contract, agreement, or from special enactments, "Federal legisla. lease; and the term 'transportation shall tion regulating commerce, in so far, at least, include all instrumentalities of shipment or as it is contained in the act of 1887 [24 carriage.” Stat. at L. 379, chap. 104, Comp. Stat. 1913, The word "transportation” is the crucial

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word, and its definition in the amendment | brace car equipment for the origination of of 1906 is as follows:

freight; and, referring to § 1, it was said: and the term 'transportation' "The term 'instrumentalities of shipment shall include cars and other vehicles and or carriage,' as found in the first section of all instrumentalities and facilities of ship the statute, of course includes cars, but they ment or carriage, irrespective of ownership are such cars as are provided by the carrier or of any contract, express or implied, for or used by it in interstate commerce, and the use thereof and all services in connec- the statute nowhere clothes the Commission tion with the receipt, delivery, elevation, with power to determine what kind of cars and transfer in transit, ventilation, refriger. the carrier should use for this purpose and ation or icing, storage, and handling of require the carrier to place upon its line property transported; and it shall be the for use in this business such kind and numduty of every carrier subject to the provi. ber of cars as the Commission may decide sions of this act to provide and furnish such will constitute a proper and necessary equiptransportation upon reasonable request ment of car service. The duty of every such therefor. ..” And this, it is contended, carrier is none the less obligatory at commust be read in connection with § 12 as mon law, and by its charter to furnish an amended March 2, 1889, as follows:

adequate and proper car equipment for all and the Commission hereby the business of this character it undertakes authorized and required to execute and en- and advertises in its tariffs it will do. The force the provisions of this act.” (25 Stat. statute does not undertake to clothe the at L. 855, 853, chap. 382, Comp. Stat. 1913, Interstate Commerce Commission with the 88 8569, 8576.)

power by summary proceeding of compelling Section 1 of the Act of 1887 came before a railroad company to perform all his comthe Commission for consideration, and the mon-law duties, but leaves many of these duty thereunder of carriers to furnish tank to be enforced in the courts by suits for cars for the transportation of petroleum, in damages and by other proceedings. Scofield v. Lake Shore & M. S. R. Co. 2 I. “The power, if it should be held to exist C. C. Rep. 90, 2 Inters. Com. Rep. 67. The at all, on the part of the Interstate Comopinion is too long to review. It is enough merce Commission, to require a carrier to to say of it that it considered the conditions furnish tank cars when that carrier is furof the oil trade, the different methods of nishing none whatever in its business, would shipping oil in barrels and in tank cars, and apply equally to sleeping cars, parlor cars, stated that the latter method had become fruit cars, refrigerator cars, and all manner established, though very few of the rail of cars occasion might require, and roads of the country owned tank cars; com- would be limited only by the necessities of pared the cost and advantages of the interstate commerce and the discretion of methods, and from this declared that it was the Interstate Commerce Commission. A obvious that where the carriers did not power so extraordinary and so vital, reached furnish tank cars, one shipper could not by construction, could not justly rest upon compete in all respects upon equal terms any less foundation than that of direct exwith another shipper who furnished tank pression or necessary implication, and we cars for the transportation of his oil, un find neither of these in the statute." less he also furnished tanks; and, following And it was declared that the lawmaking a former decision, declared that it was prop. power had not itself undertaken the responerly the business of the carrier to supply sibility or clothed the Commission with the the rolling stock for the freight he offers responsibility of directing a carrier to supor proposes to carry, and that if the diverply itself with any particular kind of equipsities of the traffic are such that this is ment or cars, or, in fact, any equipment or "not always practicable, and consignors are cars at all for the transportation of freight allowed to supply it themselves, the carrier over its line. It will be observed, therefore, must not allow his own deficiencies in this that all of the elements that entered into particular to be made the means of putting the problem of the power of the Commission at an unreasonable disadvantage those who and the reasons which seemed to impel its make use in the same traffic of the facili. exercise were considered. ties he supplies.” To prevent such dis- There was a repetition of the elements advantages or preferences the Commission and decision in Re Transportation & Redecided it had power; to enforce the duty frigeration of Fruit, 10 Inters. Com. Rep. of supplying cars it decided it had not the 360, 373 (1904). It was there said that power.

the Commission was of opinion that it was Section 3 of the act was asserted against the duty of railroad companies to furnisb the conclusion, and the Commission replied refrigerator cars for the transportation of that that section applied only to facilities fruit; that at one time carriers might between connecting lines, and did not em-' have declined to provide this special kind

as

of equipment, but that the trade had so, inspection, is an amendment of certain secgrown that the carriers "might as well de- tions of the present statute. ... Aside cline to provide stock cars for the transpor- from the main question—the grant of power tation of live stock as refrigerator cars for to the Commission, after hearing, to fix the the carriage of perishable commodities." It future rate-several other amendments are was, however, added: “But this duty does proposed with the view of improving the not spring from the act to regulate com- law as a remedial measure, and these merce, nor has this Commission any juris- amendments will now be referred to under diction of that matter. It arises out of appropriate headings, one of which was as the common-law liability of the defendant follows: railway companies as common carriers, and

“Enlargement of Jurisdiction. redress for failure to fulfil it must be sought in the courts.”

"It will be seen that the changes proposed Certain abuses were pointed out in that in the first section are designated (a) to case and the tendency of the ownership of somewhat increase the jurisdiction of the cars by private car lines to monopoly, and law as to the carriers subject to its proas a consequence it was urged upon the visions and (b) to bring within the scope Commission that carriers should not be of the law certain charges and practices permitted to make exclusive contracts with which are not now subject to regulation, or private car lines like those then under con respecting which there is dispute as to the sideration, but should be compelled to pro- power of the Commission. The first purvide their own equipment. The Commission pose is accomplished by leaving out of the replied, at page 377: “The facts before us first paragraph the phrase 'under a common call for no expression of opinion on that control, management, or arrangement, in subject, and none is attempted.”

order to reach certain classes of carriers This, then, was the view of the Interstate which are now exempt from the obligations Commerce Commission of the duty of car- and requirements of the act. The second riers and of its power over them; that is, purpose is 'sought to be accomplished by that it was the duty of carriers to provide enlarging the definition of the term 'trangand furnish equipment for transportation portation,' so as to include the charges for of commodities, and that this duty might various services, such as refrigeration and expand with time and conditions, the spe- the like, which are now claimed to be becial car becoming the common car, and the yond our authority. The obligation to fur. shipper's right to demand it receiving the nish and provide the services here referred sanction of law. But the Commission de to is also imposed, which is likewise a point cided it was the sanction of the common now in dispute. No other changes are prolaw, not of the statute, and that the rem- posed in the first five sections of the act, edy was in the courts, not in the Commis- which are commonly spoken of as containsion. With this view we start as the first ing its principal or substantive provisions. element of our decision.

In other words, the only amendment sug. But a change in the statute and remedy gested in this regard is an enlargement of is asserted,-a change, it is further assert. jurisdiction. In this connection, and as il. ed, consequent upon a demand for a greater lustrative of the matters here referred to, administrative power and remedy. To sus the subject of refrigeration charges may be tain the assertions the reports of the Com- properly considered.” mission are adduced, the legislation it Then follows a consideration of refrigerarecommended, and the comments of the leg. tion charges, the dispute that existed as to islators.

whether the shipper or the carrier should It is especially to be noted that the bear the expense of refrigeration, and the amendment of 1906 is in the exact language controversy over the jurisdiction of the of the recommendation of the Commission, Commission. It was said that "the Conas far as concerns that part which defines gress ought to make that service, by express "railroad” and “transportation.”

provision in the law, a part of the transporThe Senate committee on interstate com- tation itself. We do not at this time recmerce had instituted an extended inquiry ommend that carriers should be prohibited and members of the Commission appeared from using private cars or from employing before the special committee which had the owners of such cars to perform the been appointed and presented a bill which icing service if they find that course to their the Commissioners said embodied their rec- advantage, but we do recommend that these ommendations, and which the Commission charges should be put on the same basis as subsequently made part of its 19th annual all other freight charges. They should be report. Significant explanations accompa- published and maintained the same as the nied the bill. It was stated: “The form of transportation charge, and be subject to the proposed measure, as will appear upon the same supervision and control.”

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