tiff in error, and is therefore a denial of due process of law. Upon this point the state court held, following its previous decision in Chicago, I. & L. R. Co. v. Railroad Commission, 175 Ind. 630, 638, 95 N. E. 364, that the Railroad Commission itself, by virtue of the act, had power to grant relief through a rehearing, and that without first resorting to that method of procedure plaintiff in error was not entitled to have the order set aside by the courts. The general rule is that one aggrieved by the rulings of such an administrative tribunal may not complain that the Constitution of the United States has been violated if he has not availed himself of the remedies prescribed by the state law for a rectification of such rulings. Bradley v. Richmond, 227 U. S. 477, 485, 57 L. ed. 603, 606, 33 Sup. Ct. Rep. 318. And since the record shows that plaintiff in error and its associates were accorded a rehearing upon the very question of modification, but abandoned it, nothing more need be said upon that point. Judgment affirmed. safe and suitable boilers and appurtenances, an intelligible measure of the duty of plainthereto (chap. 103, 36 Stat. at L. 913, Comp. Stat. 1913, § 8630). The latter act was among those referred to in the Georgia Case, and held not to oust the authority of the state because it did not appear either that Congress had acted, or that the Interstate Commerce Commission, under the authority of Congress, had established any regulations concerning headlights. The amendment of 1915 extends the provisions respecting inspection, etc., to the entire locomotive and all its appurtenances. Whether those provisions authorize the Interstate Commerce Commission to prescribe any particular type of headlight, or other appliance, is a question upon which we need not now pass, for the reason that the decision of the supreme court of Indiana, refusing an injunction to restrain the enforcement of the state Com- | mission's order, was rendered and judgment thereon entered before the passage by Congress of the act referred to. Obviously, we cannot say that by that decision and judgment any right of plaintiff in error under a law of the United States was infringed, within the meaning of § 237, Judicial Code, when the law creating the supposed right was not enacted until after the judgment. If, however, by virtue of the provisions of the Act of 1915, or of any action heretofore or hereafter taken by the Interstate Commerce Commission under it, UNITED STATES and Interstate Commerce plaintiff in error is entitled to an injunction against the further enforcement of the order of the state Commission, that right may be asserted in another action and will not be prejudiced by our present decision. With respect to the question of due process of law, it is unnecessary to determine whether the 14th Amendment requires that state action, legislative in its nature, of the character of the order of the Railroad Commission, shall be preceded by notice and an opportunity for a hearing. In the case before us, the supreme court of Indiana construed the act of 1909 as supplemental to the act of 1905, which, as amended in 1907 (Acts 1907, p. 469, § 6; Burns's Anno. Stat. [Ind.] 1908, § 5536), gave to any carrier or other party dissatisfied with any order made by the Commission a right to resort to the courts in an action to sus Mr. Justice Clarke took no part in the consideration or decision of this case. Commission, Appts., V. (242 U. S. 208) PENNSYLVANIA RAILROAD COMPANY. (No. 340.) UNITED STATES, Interstate Commerce V. PENNSYLVANIA RAILROAD COMPANY. COMMERCE 85 - INTERSTATE COMMERCE 1. The Interstate Commerce Commission was given no power to order a carrier to provide and furnish to shippers tank cars for interstate shipments of petroleum products by the amendment of the Act of June 29, 1906 (34 Stat. at L. 584, chap. 3591, Comp. Stat. 1913, § 8563), to the Act of February 4, 1887 (24 Stat. at L. 379, chap. 104), § 1, defining the term "transportation" as including "cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilaThe only other point requiring mention is tion, refrigeration or icing, storage, and the insistence that the order is so indefinite handling of property transported," and makand uncertain in its terms as not to furnishing it the duty of every carrier subject to pend it or set it aside. Since the order in question was made after notice and a full hearing, and plaintiff in error had and exercised the right to a judicial review by action at law, we concur in the view of the state court that there has been in this respect no deprivation of property without due process of law. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes au the provisions of the act "to provide and furnish such transportation upon reasonable request therefor," although by § 12 as amended by the Act of March 2, 1889 (25 Stat. at L. 858, chap. 382, Comp. Stat. 1913, § 8576), the Commission was thorized and required to execute and enforce the provisions of the act, and by § 13, as amended by the Act of June 18, 1910 (36 Stat. at L. 550, chap. 309, Comp. Stat. 1913, § 8581), was given power to enter orders not only regarding rates, but regarding classifications, regulations, or practices, whether affecting rates or not. If any duty to furnish such cars exists, it is enforceable in the courts, not by the Commission. [Ed. Note.-For other cases, see Commerce, Cent. Dig. § 138: Dec. Dig. 85. For other definitions, see Words and Phrases, First and Second Series, Transportation.] COMMERCE 95-INTERSTATE COMMERCE COMMISSION-JUDICIAL REVIEW FACTS. 2. A finding of the Interstate Commerce Commission that a carrier has held itself out to carry oil in tank cars is one of law, not of fact, and therefore is reviewable in the courts, where it is based upon a rule in the official classification providing rates for articles in tank cars, which states that the carriers whose tariffs are covered by such classification assumed no obligation to furnish tank cars. [Ed. Note. For other cases, see Cent. Dig. § 145; Dec. Dig. 95.] [Nos. 340 and 341.] Argued October 18 and 19, 1916. TW Commerce, Decided WO APPEALS from the District Court of the United States for the Western District of Pennsylvania to review a decree enjoining the enforcement of an order of the Interstate Commerce Commission, requiring a carrier to provide and furnish to shippers tank cars for interstate shipments of petroleum products. Affirmed. See same case below, 227 Fed. 911. Statement by Mr. Justice McKenna: quired to provide, on or before August 15, 1915, and thereafter to furnish, upon reasonable request and reasonable notice, at complainants' respective refineries, tank cars in sufficient number to transport said complainants' normal shipments in interstate commerce. "And it is further ordered, that this order shall continue in force for a period of not less than two years from the date when it shall take effect." The time of compliance was subsequently extended to November 15, 1915, on which date the railroad company brought this suit to enjoin the enforcement of the order. A preliminary injunction was prayed, and, upon a hearing by three judges, was granted. 227 Fed. 911. To review that action this appeal is prosecuted. The Commission made quite elaborate findings, which, however, we do not think it is necessary to quote in full. It found the production of the oil companies, and the following additional facts: (1) That 91 per cent of the oil produced by the Paraffin Company was shipped in tanks, 1 per cent in barrels loaded in cars other than tank cars, and 7 per cent in pipe lines, while of the shipments made by the other company 86.8 per cent moved in tank cars, 4.7 per cent in barrels and 8.5 per cent in pipe lines. (2) For a long time the bulk of refined oil in the United States has been shipped in tank cars and at present 91 per cent is so transported. The railroad has been using tank cars for twenty-five years. The capacity of the cars is found, and they are so constructed that they may be rapidly loaded at the refineries, and jobbers and dealers in refined oil throughout the country have the proper and necessary facilities for unloading the cars by gravity at their various stations. (3) The only other method of transporting oil is in barrels or similar containers, the cost of which is from 3 to 3 cents a gallon above the cost of transportation in tank cars, and this makes such method of 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 been found in said report to be in violation of the provisions of the act to regulate commerce and amendments thereto. "It is further ordered, that said defendant be, and it is hereby, notified and re (4) In 1887 the railroad acquired 1,308 tank cars, some of which have since been sold to independent refiners, but it owned at the time of the hearing 499 cars, of which 482 are furnished to shippers of oil located 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 Paraffin Company owned 54 tank cars and the Crew-Levick Company 57; and it was testified that these companies for five or six years have daily made inquiry for the delivery of cars to them, and that formal orders for cars have been constantly on file in the railroad's offices. § 8563] and its amendments, has thus far left carriers free to exercise their own judgment in the purchase, construction, and equipment of their roads and in the selection of their rolling stock." Indicating that the law conferred upon the Commission the power to prevent and redress unfair practices and discriminations, the court further said: "We find nothing in the law which confers upon the Commission power to compel a carrier to acquire facilities it does not (6) On November 11, 1912, shortly before the filing of the complaints before the Commission, complainants served notice upon the railroad company, requesting it to fur-possess, or to acquire better facilities than nish a sufficient number of tank cars to ship respectively 450,000 gallons of oil per month from the Paraffin Company's refinery at Titusville, and 600,000 gallons per month from the Glade (Crew-Levick Co.) Oil Works at Warren. those it possesses, not with the object of preventing discrimination and preferences, but in order that the shipper may have larger, better, and perhaps more economical facilities." And coming to consider the question of To the request of complainants, the rail-power conferred by the Interstate Commerce road company replied: "We beg to say that the railroad company is not prepared to increase its present tankcar equipment, but is prepared to transport the commodities in question when properly contained in barrels or other similar retainers at rates that are fair, reasonable, and nondiscriminatory." Solicitor General Davis and Mr. Robert Szold for the United States. Act of 1887, as amended in 1906 [34 Stat. at L. 584, chap. 3591, Comp. Stat. 1913, § 8563], the court decided that the amendment "added nothing to the original duty of the carrier as prescribed by the original act and as interpreted by the Commission, and vested in the Commission no increase of power over cars as instrumentalities of shipment." To this proposition the United States and the Commission oppose the contentions that Mr. Joseph W. Folk for the Interstate "it is the duty of every interstate carrier Commerce Commission. Messrs. John G. Johnson, Thomas Patterson, Frederic D. McKenney, and Henry Wolf Biklé for the Pennsylvania Railroad Company. Messrs. Charles D. Chamberlin and David Wallerstein for the Crew-Levick Company. Messrs. Samuel B. Clarke and Charles W. Atwater as amici curiæ. Mr. Justice McKenna, after stating the case as above, delivered the opinion of the court: The question in the case is, Has the Commission the jurisdiction exercised by the order? It is not denied that the Commission has power over the general equipment of a carrier, but it is denied that it has power to require "vehicles of a special type having no reference to the safety of transportation," and to this distinction the argument of counsel for the railroad company is addressed. to provide and furnish upon reasonable request such cars as are reasonably necessary for handling the normal traffic of which it is a common carrier," and that the Commission is given jurisdiction to enforce the duty. The power of the Commission has been given precedence and dominance in the argument, the extent of the duty of carriers coming in secondarily, though important to be considered. In other words, the main question presented is, whatever be the duty of carriers as to the equipment they must have or furnish, whether the Interstate Commerce Commission is the tribunal to enforce the duty. A comparison of the act as passed in 1887 with the amendment of 1906 becomes necessary, and a consideration of the rulings under the former as an interpreter of the latter. The Act of 1887 (24 Stat. at L. 379, chap. 104, Comp. Stat. 1913, § 8563) provided that "The term 'railroad' as used in this act shall include all bridges and ferries used or The judgment of the district court had somewhat broader basis. The court said: "The act to regulate commerce does not con-operated in connection with any railroad, fer upon the Interstate Commerce Commission all power over cars and other instrumentalities of shipment." And that, aside from special enactments, "Federal legisla tion regulating commerce, in so far, at least, as it is contained in the act of 1887 [24 Stat. at L. 379, chap. 104, Comp. Stat. 1913, 37 S. C.-7 and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease; and the term 'transportation' shall include all instrumentalities of shipment or carriage." The word "transportation" is the crucial 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 all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported; and it shall be the duty of every carrier subject to the provisions of this act to provide and furnish such transportation upon reasonable request therefor. .." And this, it is contended, must be read in connection with § 12 as amended March 2, 1889, as follows: and the Commission is hereby authorized and required to execute and enforce the provisions of this act." (25 Stat. at L. 855, 853, chap. 382, Comp. Stat. 1913, §§ 8569, 8576.) Section 1 of the Act of 1887 came before the Commission for consideration, and the duty thereunder of carriers to furnish tank cars for the transportation of petroleum, in Scofield v. Lake Shore & M. S. R. Co. 2 I. C. C. Rep. 90, 2 Inters. Com. Rep. 67. The opinion is too long to review. It is enough to say of it that it considered the conditions of the oil trade, the different methods of shipping oil in barrels and in tank cars, and stated that the latter method had become established, though very few of the rail roads of the country owned tank cars; compared the cost and advantages of the methods, and from this declared that it was obvious that where the carriers did not furnish tank cars, one shipper could not compete in all respects upon equal terms with another shipper who furnished tank cars for the transportation of his oil, unless he also furnished tanks; and, following a former decision, declared that it was properly the business of the carrier to supply the rolling stock for the freight he offers or proposes to carry, and that if the diver sities of the traffic are such that this is "not always practicable, and consignors are allowed to supply it themselves, the carrier must not allow his own deficiencies in this particular to be made the means of putting at an unreasonable disadvantage those who make use in the same traffic of the facili ties he supplies." To prevent such disadvantages or preferences the Commission decided it had power; to enforce the duty of supplying cars it decided it had not the power. Section 3 of the act was asserted against the conclusion, and the Commission replied that that section applied only to facilities between connecting lines, and did not em or carriage,' as found in the first section of the statute, of course includes cars, but they are such cars as are provided by the carrier or used by it in interstate commerce, and the statute nowhere clothes the Commission with power to determine what kind of cars the carrier should use for this purpose and require the carrier to place upon its line for use in this business such kind and number of cars as the Commission may decide will constitute a proper and necessary equipment of car service. The duty of every such carrier is none the less obligatory at common law, and by its charter to furnish an adequate and proper car equipment for all the business of this character it undertakes and advertises in its tariffs it will do. The statute does not undertake to clothe the Interstate Commerce Commission with the power by summary proceeding of compelling a railroad company to perform all his common-law duties, but leaves many of these to be enforced in the courts by suits for damages and by other proceedings. "The power, if it should be held to exist at all, on the part of the Interstate Commerce Commission, to require a carrier to furnish tank cars when that carrier is furnishing none whatever in its business, would apply equally to sleeping cars, parlor cars, fruit cars, refrigerator cars, and all manner of cars as occasion might require, and would be limited only by the necessities of interstate commerce and the discretion of the Interstate Commerce Commission. power so extraordinary and so vital, reached by construction, could not justly rest upon any less foundation than that of direct expression or necessary implication, and we find neither of these in the statute." A And it was declared that the lawmaking power had not itself undertaken the responsibility or clothed the Commission with the responsibility of directing a carrier to supply itself with any particular kind of equipment or cars, or, in fact, any equipment or cars at all for the transportation of freight over its line. It will be observed, therefore, that all of the elements that entered into the problem of the power of the Commission and the reasons which seemed to impel its exercise were considered. There was a repetition of the elements and decision in Re Transportation & Refrigeration of Fruit, 10 Inters. Com. Rep. 360, 373 (1904). It was there said that the Commission was of opinion that it was the duty of railroad companies to furnish refrigerator cars for the transportation of fruit; that at one time carriers might have declined to provide this special kind of equipment, but that the trade had so grown that the carriers "might as well decline to provide stock cars for the transportation of live stock as refrigerator cars for the carriage of perishable commodities." It was, however, added: “But this duty does not spring from the act to regulate commerce, nor has this Commission any jurisdiction of that matter. It arises out of the common-law liability of the defendant railway companies as common carriers, and redress for failure to fulfil it must be sought in the courts." Certain abuses were pointed out in that case and the tendency of the ownership of cars by private car lines to monopoly, and as a consequence it was urged upon the Commission that carriers should not be permitted to make exclusive contracts with private car lines like those then under consideration, but should be compelled to provide their own equipment. The Commission replied, at page 377: "The facts before us call for no expression of opinion on that subject, and none is attempted." This, then, was the view of the Interstate Commerce Commission of the duty of carriers and of its power over them; that is, that it was the duty of carriers to provide and furnish equipment for transportation of commodities, and that this duty might expand with time and conditions, the special car becoming the common car, and the shipper's right to demand it receiving the sanction of law. But the Commission decided it was the sanction of the common law, not of the statute, and that the remedy was in the courts, not in the Commission. With this view we start as the first element of our decision. But a change in the statute and remedy is asserted,—a change, it is further asserted, consequent upon a demand for a greater administrative power and remedy. To sustain the assertions the reports of the Commission are adduced, the legislation it recommended, and the comments of the legislators. It is especially to be noted that the amendment of 1906 is in the exact language of the recommendation of the Commission, as far as concerns that part which defines "railroad" and "transportation." The Senate committee on interstate commerce had instituted an extended inquiry and members of the Commission appeared before the special committee which had been appointed and presented a bill which the Commissioners said embodied their recommendations, and which the Commission subsequently made part of its 19th annual report. Significant explanations accompanied the bill. It was stated: "The form of the proposed measure, as will appear upon inspection, is an amendment of certain sections of the present statute. Aside from the main question—the grant of power to the Commission, after hearing, to fix the future rate-several other amendments are proposed with the view of improving the law as a remedial measure, and these amendments will now be referred to under appropriate headings, one of which was as follows: "Enlargement of Jurisdiction. "It will be seen that the changes proposed in the first section are designated (a) to somewhat increase the jurisdiction of the law as to the carriers subject to its provisions and (b) to bring within the scope of the law certain charges and practices which are not now subject to regulation, or respecting which there is dispute as to the power of the Commission. The first purpose is accomplished by leaving out of the first paragraph the phrase 'under a common control, management, or arrangement,' in order to reach certain classes of carriers which are now exempt from the obligations and requirements of the act. The second purpose is sought to be accomplished by enlarging the definition of the term 'transportation,' so as to include the charges for various services, such as refrigeration and the like, which are now claimed to be beyond our authority. The obligation to furnish and provide the services here referred to is also imposed, which is likewise a point now in dispute. No other changes are proposed in the first five sections of the act, which are commonly spoken of as containing its principal or substantive provisions. In other words, the only amendment suggested in this regard is an enlargement of jurisdiction. In this connection, and as illustrative of the matters here referred to, the subject of refrigeration charges may be properly considered." Then follows a consideration of refrigeration charges, the dispute that existed as to whether the shipper or the carrier should bear the expense of refrigeration, and the controversy over the jurisdiction of the Commission. It was said that "the Congress ought to make that service, by express provision in the law, a part of the transportation itself. We do not at this time recommend that carriers should be prohibited from using private cars or from employing the owners of such cars to perform the icing service if they find that course to their advantage, but we do recommend that these charges should be put on the same basis as all other freight charges. They should be published and maintained the same as the transportation charge, and be subject to the same supervision and control." |