Texas & P. Ry. Co. v. United States, Houston E. & W. T. Ry. Co. v. Same, 205 Fed. 380, 391, Com. Ct. No. 68, p. 655; Com. Ct. affirmed, Houston E. & W. T. Ry. Co. v. U. S., 234 U. S. 342, 58 L. Ed. 1341, 34 Sup. Ct. 833. State rates not the measure of interstate rates.-Corp. Com. of Okla. v. A. T. & S. F. R. Co., 31 I. C. C. 532; Trier v. C. St. P. M. & O. R. Co., 30 I. C. C. 352; Rates on Beer, 31 I. C. C. 544; Rates on Live Poultry, 32 I. C. C. 380, but see Western Rate Advance case 1915, 35 I. C. C. 497. A terminal company part of a railroad and steamship system not excluded from the jurisdiction of the Commission by this proviso.-So. Pacific Terminal Co. v. Int. Com. Com., 219 U. S. 498, 55 L. Ed. 310, 31 Sup. Ct. 279. Same-styled case, 166 Fed. 134, sustaining the Commission in Eichenberg v. So. Pac. Co., 14 I. C. C. 250. See Texas & No. R. Co. v. Sabine Tram Co., supra; Sec. 401, together with cases cited and discussed in that case, and Chicago M. & St. P. R. Co. v. Iowa, also cited in Sec.

401.

Notes of Decisions Rendered Since 1915.

Federal authority could not be exerted over intrastate rates under Section 3 of Act unless, only to the extent that, unjust discrimination against interstate shippers, receivers or communities was definitely shown to exist.-Am. Ry. Exp. Co. v. South Dakota, 244 U. S. 617, 61 L. Ed. 1352, 37 Sup. Ct. 656; Ill. Cent. R. R. Co. v. Public Utilities Commission, 245 U. S. 493, 62 L. Ed. 425, 38 Sup. Ct. 170.

Notes of Decisions Rendered Since 1920.

Proviso not violated when Interstate Commerce Commission orders removal of unjust discrimination against interstate commerce by operation of state-made rates, such orders, as to intrastate traffic, being merely incidental to regulation of interstate commerce and necessary to its efficiency.-Railroad Commission of Wisconsin v. C. B. & Q. R. R. Co., 257 U. S. 563, 66 L. Ed. 371, 42 Sup. Ct. 232. See also New York v. U. S., 257 U. S. 591, 66 L. Ed. 385, 42 Sup. Ct. 239.

§ 402. Certain Water Transportation Exempted. The provisions of this Act shall not apply to the transportation of passengers or property by a carrier by water where such

transportation would not be subject to the provisions of this Act except for the fact that such carrier absorbs, out of its port-to-port water rates or out of its proportional through rates, any switching, terminal, lighterage, car rental, trackage, handling or other charges by a rail carrier for services within the switching, drayage, lighterage, or corporate limits of a port terminal or district.

A new paragraph added by Section 400, Transportation Act, 1920; Section 1, paragraph (2), subdivision (c), of Interstate Commerce Act. This provision merely says that the absorptions named do not constitute an "arrangement for a continuous carriage or shipment" and do not change the rule that substance and not form controls. See Section 41, ante, and Tampa Fuel Co. v. A. C. L. R. Co., 43 I. C. C. 231, and cases cited.

§ 403. Terms "Common Carrier," "Common Carrier," "Railroad," and "Transportation" Defined. The term "common carrier" as used in this Act shall include all pipe line companies; telegraph, telephone and cable companies operating by wire or wireless; express companies; sleeping car companies; and all persons, natural or artificial, engaged in such transportation or transmission as aforesaid as common carriers for hire. Wherever the word "carrier" is used in this Act it shall be held to mean "common carrier.” The term "railroad" as used in this Act shall include all bridges, car floats, lighters, and ferries used by or operated in connection with any railroad, and also all the road in use by any common carrier operating a railroad, whether owned or operated under a contract, agreement, or lease, and also all switches, spurs, tracks, terminals and terminal facilities of every kind used or necessary in the transportation of the persons or property designated herein, including all freight depots, yards and ground, used or necessary in the transportation or delivery of any such property. The term "transportation" as used in this Act shall include locomotives, cars, and other vehicles, vessels 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. The term "transmission" as used in this Act shall include the transmission of intelligence through the application of electrical energy or other use of electricity, whether by means of wire, cable, radio apparatus, or other wire or wireless conductors or appliances, and all instrumentalities and facilities for and services in connection with the receipt, forwarding, and delivering of message, communications, or other intelligence so transmitted, hereinafter also collectively called messages.

Part of Section 400, Transportation Act, Section 1, paragraph (3), Interstate Commerce Act. The former section read:

The term "common carrier" as used in this act shall include express companies and sleeping car companies. The term "railroad" as used in this Act, shall include all bridges and ferries used or operated in connection with any railroads, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement or lease, and shall also include all switches, spurs, track and terminal facilities of every kind used or necessary in the transportation of the persons or property designated herein, and also all freight depots, yards, and grounds used or necessary in the transportation or delivery of any of said property; and the term "transportation" 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 service in connection with the receipt, delivery, elevation, and. transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported.

Paragraph (2), Section 1, of Act as amended by Act of June 29, 1906. The paragraph of the original Act read:

"The term 'railroad' as used in this Act shall include all bridges and ferries used or operated in connection with any railroad, 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."

A privately-owned stock car not a common carrier.-Burton Stock Car Co. v. Chicago, B. & Q. R. Co., 1 I. C. C. 132, 1 I. C. R. 329, 353. Express companies not included in original Act.-Re Express Companies, 1 I. C. C. 349, 369, 1 I. C. R. 677; Report of Commission 1887, 1 I. C. R. 650, 657. An interstate bridge a common carrier.-Ky. & I. Bridge Co. v. L. & N. R. Co., 2 I. C. C. 162, 2 I. C. R. 102. Contra, holding the bridge company not a common carrier.-Ky. & I. Bridge Co. v. L. & N. R. Co., 37 Fed. 567. A stock-yards terminal road not a common carrier.-Cattle Raisers Asso. v. Ft. W. & D. Co. Ry. Co., 7 I. C. C. 513, 555. Order not enforced. Int. Com. Com. v. Chicago, B. & Q. R. Co., 98 Fed. 173, 103 Fed. 249, 43 C. C. A. 209, 186 U. S. 320, 46 L. Ed. 1182, 22 Sup. Ct. 824. Stage line not a common carrier within meaning of this Act.-Wylie v. N. Pac. Ry. Co., 11 I. C. C. 145. Baggage company not within Act, and "common carrier" means a carrier subject to the Act.-Re Right of R. R. Co's. to Exchange Free Transportation with Local Transfer Co's., 12 I. C. C. 39. A ferry transportation company entering into a through transportation arrangement is a common carrier.-Enterprise Trans. Co. v. Penn. R. Co., 12 I. C. C. 326, 335. "Railroad" defined.-Eichenberg v. So. Pac. Co., 14 I. C. C. 250. Common carrier defined.United States v. Sioux City Stock Yards Co., 162 Fed. 556.

Notes of Decisions Rendered Since 1909.

Applies to street railways.-West End. Imp. Club v. O. & C. B. R. & B. Co., 17 I. C. C. 239; jurisdiction over Urban Electric Lines, 33 I. C. C. 536. Commission held to be without jurisdiction.-O. & C. B. St. Ry. Co. v. Int. Com. Com., 179 Fed. 243; Commission sustained by Com. Ct.-Omaha & C. B. St. Ry. Co. v. Int. Com. Com., 191 Fed. 40, Opin. Com. Ct. No. 25, p. 147; Com. Ct. & Com. reversed without passing on the effect of the amendment of June 18, 1910, passed subsequent to the action of the Commission.-Omaha & C. B. St. Ry. v. Int. Com. Com., 230 U. S. 324, 57 L. Ed. 1501, 46 L. R. A. (N. S.) 385, 33 Sup. Ct. 890. Outbound shipment under a transit privilege is transportation.-Brook-Rauch Mill & Elevator Co. v. St. L. I. M. & S. Ry. Co., 21 I. C.

C. 651. Bridge Company under the facts stated not subject to Act.-Kansas City v. K. C. V. & T. Ry. Co., 24 I. C. C. 22. Elevation connected with transportation may be paid for by the carriers.-Re Elevation Allowances, 24 I. C. C. 197. For history of decisions relating to elevation, see Re Allowances to Elevators by Mo. Pac., 14 I. C. C. 315; Traffic Bureau, Merchants Exchange of St. Louis v. C. B. & Q. R. R. Co., 14 I. C. C. 317, 22 I. C. C. 496; Peavy & Co. v. N. Pac., 176 Fed. 409; Int. Com. Com. v. Diffenbaugh, 222 U. S. 42, 56 L. Ed. 83, 32 Sup. Ct. 22; Union P. R. Co. v. Updike Grain Co., 222 U. S. 215, 56 L. Ed. 171, 32 Sup. Ct. 39, affirming Updike Grain Co. v. N. P. R. Co., 178 Fed. 223, 101 C. C. A. 583. Meaning of transportation as applied to lining cars.-S. W. Mo. Millers' Club v. St. L. & S. F. R. Co., 26 I. C. C. 583. A sleeping car destined over interstate route is an instrumentality of interstate commerce while lying over at a junction.-Pullman Co. v. Linke, 203 Fed. 1017. Icing carload shipments within the Act.-Cudahy Packing Co. v. G. W. Ry. Co., 215 Fed. 93. Delivery upon arrival.-Horton v. Tonopah Goldfield R. Co., 225 Fed. 406.

Congress has occupied the field as to express companies engaged in interstate commerce, thus excluding the power of state laws to affect.-Barrett v. New York, 232 U. S. 14, 58 L. Ed. 483, 34 Sup. Ct. 203. A jitney a common carrier.—— Nolen v. Riechman, 225 Fed. 812.

Notes of Decisions Rendered Since 1915.

"Car Ferry" embraced in definition of railroad.-Peninsular & Occidental S. S. Co., 37 I. C. C. 432, 435; Stock yards.-Nashville Abattoir, Hide & Melting Asso. v. L. & N. R. Co., 40 I. C. C. 134, 139. Scope of transportation.— American Paper & Pulp Asso. v. B. & O. R. R. Co., 41 I. C. C. 506, 511, 512; Railroad Com. of Fla. v. F. E. C. Ry. Co., 42 I. C. C. 616, 625. Street cars excluded.-James v. W. & O. D. Co., 44 I. C. C. 570, 573. Railroad defined.St. Louis, Mo.-Ill. Passenger Fares.-41 I. C. Č. 584, 587, 589, 590. Transportation a public service.-The Car Peddling Case, 45 I. C. C. 494, 501.