The provision in the Hepburn Act, amending the Act to Regulate
Commerce by making persons or corporations engaged in transporting
oil from one state to another by pipelines carriers within the
provisions of the act, applies to the combination of pipelines
owned and controlled by the Standard Oil Company and to the
constituent corporations united in a single line, although the only
oil transported is that which has been purchased by the Standard
Oil Company or by such constituent corporations prior to the
transportation thereof.
As applied to existing corporations, the pipeline provision of
the Hepburn Act does not compel persons engaged in interstate
transportation of oil to continue in operation, but it does require
them not to continue to transport oil for others or purchased by
themselves except as common carriers.
The fact that the article transported between interstate points
has been purchased by the carrier, is not conclusive against the
transportation's being interstate commerce, and in this case
held that interstate transportation of oil purchased from
the producers by the owner of the pipe is interstate commerce and
under the control of Congress.
While the control of Congress over commerce among the states
cannot be made a means of exercising powers not committed to it by
the Constitution, it may require those who are common carriers in
substance to become so in form.
The provision in the Hepburn Act requiring persons or
corporations engaged in interstate transportation of oil by
pipelines to become common carriers and subject to the provisions
of the Act to Regulate Commerce is not unconstitutional, either as
to future pipelines or as to the owners of existing pipelines, as
depriving them of their property without due process of law.
Page 234 U. S. 549
Requiring a person engaged in interstate transportation of oil
by pipelines to become a common carrier does not involve a taking
of private property, and the provision in the Hepburn Act to that
effect is not unconstitutional under the Fifth Amendment.
A corporation engaged in refining oil may draw oil from its own
wells through a pipeline across a state line to its own refinery
for it own use without being a common carrier under the pipeline
provisions of the Hepburn Act, the transportation being merely
incidental to the use of the oil at the end.
204 F. 798 reversed in part and affirmed in part.
The facts, which involve the constitutionality, construction,
and application of the provisions in the Hepburn Act relating to
interstate transportation of oil by pipelines, are stated in the
opinion.
Page 234 U. S. 557
MR. JUSTICE HOLMES delivered the opinion of the Court.
By the Act of Congress of June 29, 1906, c. 3591, 34 Stat. 584,
the Act to Regulate Commerce was amended so that the first section
reads in part as follows:
"That the provisions of this act shall apply to any corporation
or any person or persons engaged in the transportation of
Page 234 U. S. 558
oil or other commodity, except water and except natural or
artificial gas, by means of pipelines, or partly by pipelines and
partly by railroad, or partly by pipelines and partly by water, who
shall be considered and held to be common carriers within the
meaning and purpose of this Act."
Thereafter the Interstate Commerce Commission issued an order
requiring the appellees, among others, being parties in control of
pipelines, to file with the Commission schedules of their rates and
charges for the transportation of oil. 24 I.C.C. 1. The appellees
thereupon brought suit in the Commerce Court to set aside and annul
the order, and a preliminary injunction was issued by that court on
the broad ground that the statute applies to every pipeline that
crosses a state boundary, and that, thus construed, it is
unconstitutional, 204 F. 798. The United States, the Interstate
Commerce Commission, and other intervening respondents
appealed.
The circumstances in which the amendment was passed are known to
everyone. The Standard Oil Company, a New Jersey corporation, owned
the stock of the New York Transit Company, a pipeline made a common
carrier by the laws of New York, and of the National Transit
Company, a Pennsylvania corporation of like character, and by these
it connected the Appalachian oil field with its refineries in the
east. It owned nearly all the stock of the Ohio Oil Company, which
connected the Lima-Indiana field with its system, and the National
Transit Company, controlled by it, owned nearly all the stock of
the Prairie Oil & Gas Company, which ran from the Mid-Continent
field in Oklahoma and Kansas and the Caddo field in Louisiana to
Indiana, and connected with the previously mentioned lines. It also
was largely interested in the Tide Water Pipe Company, Limited,
which connected with the Appalachian and other fields and pursued
the methods of the Standard Oil Company about to be described. By
the before-mentioned and subordinate
Page 234 U. S. 559
lines, the Standard Oil Company had made itself master of the
only practicable oil transportation between the oil fields east of
California and the Atlantic Ocean, and carried much the greater
part of the oil between those points. Before the recent
dissolution, the New York and Pennsylvania companies had extended
their lines into New Jersey and Maryland to the refineries, and the
laws of those states did not require them to be common carriers. To
meet the present amendment, the Standard Oil Company took a
conveyance of the New Jersey and Maryland lines, and the common
carrier lines now end at insignificant places where there are
neither market nor appliances except those of the Standard Oil, by
which it would seem that the whole transport of the carriers' lines
is received. There is what seems to be merely a formal breach of
continuity when the carriers' pipes stop The change is not material
to our view of the case.
Availing itself of its monopoly of the means of transportation,
the Standard Oil Company refused, through its subordinates, to
carry any oil unless the same was sold to it or to them, and
through them to it, on terms more or less dictated by itself. In
this way, it made itself master of the fields without the necessity
of owning them, and carried across half the continent a great
subject of international commerce coming from many owners, but, by
the duress of which the Standard Oil Company was master, carrying
it all as its own. The main question is whether the act does and
constitutionally can apply to the several constituents that then
had been united into a single line.
Taking up first the construction of the statute, we think it
plain that it was intended to reach the combination of pipelines
that we have described. The provisions of the act are to apply to
any person engaged in the transportation of oil by means of
pipelines. The words "who shall be considered and held to be common
carriers within the meaning and purpose of this act" obviously are
not intended
Page 234 U. S. 560
to cut down the generality of the previous declaration to the
meaning that only those shall be held common carriers within the
act who were common carriers in a technical sense, but an
injunction that those in control of pipelines and engaged in the
transportation of oil shall be dealt with as such. If the Standard
Oil Company and its cooperating companies were not so engaged, no
one was. It not only would be a sacrifice of fact to form, but
would empty the act if the carriage to the seaboard of nearly all
the oil east of California were held not to be transportation
within its meaning, because by the exercise of their power the
carriers imposed as a condition to the carriage a sale to
themselves. As applied to them, while the amendment does not compel
them to continue in operation, it does require them not to continue
except as common carriers. That is the plain meaning, as has been
held with regard to other statutes similarly framed.
Atlantic
Coast Line R. Co. v. Riverside Mills, 219 U.
S. 186,
219 U. S. 195,
219 U. S. 203.
Its evident purpose was to bring within its scope pipelines that,
although not technically common carriers, yet were carrying all oil
offered, if only the offerers would sell at their price.
The only matter requiring much consideration is the
constitutionality of the act. That the transportation is commerce
among the states we think clear. That conception cannot be made
wholly dependent upon technical questions of title, and the fact
that the oils transported belonged to the owner of the pipeline is
not conclusive against the transportation's being such commerce.
Rearick v. Pennsylvania, 203 U. S. 507,
203 U. S. 512.
See Texas & New Orleans R. Co. v. Sabine Tram Co.,
227 U. S. 111. The
situation that we have described would make it illusory to deny the
title of commerce to such transportation, beginning in purchase and
ending in sale, for the same reasons that make it transportation
within the act.
The control of Congress over commerce among the
Page 234 U. S. 561
states cannot be made a means of exercising powers not entrusted
to it by the Constitution, but it may require those who are common
carriers in substance to become so in form. So far as the statute
contemplates future pipelines and prescribes the conditions upon
which they may be established, there can be no doubt that it is
valid. So the objection is narrowed to the fact that it applies to
lines already engaged in transportation. But, as we already have
intimated, those lines that we are considering are common carriers
now in everything but form. They carry everybody's oil to a market,
although they compel outsiders to sell it before taking it into
their pipes. The answer to their objection is not that they may
give up the business, but that, as applied to them, the statute
practically means no more than they must give up requiring a sale
to themselves before carrying the oil that they now receive. The
whole case is that the appellees, if they carry, must do it in a
way that they do not like. There is no taking, and it does not
become necessary to consider how far Congress could subject them to
pecuniary loss without compensation in order to accomplish the end
in view.
Hoke v. United States, 227 U.
S. 308,
227 U. S. 323;
Lottery Case, 188 U. S. 321,
188 U. S.
357.
These considerations seem to us sufficient to dispose of the
cases of the Standard Oil Company, the Ohio Oil Company, the
Prairie Oil & Gas Company, and the Tide Water Pipe Company,
Limited. The Standard Oil Company of Louisiana was incorporated
since the passage of the amendment, and before the beginning of
this suit, to break up the monopoly of the New Jersey Standard Oil
Company. It buys a large part of its oil from the Prairie Oil &
Gas Company, which buys it at the wells in the Mid-Continent field
and transfers the title to the Louisiana Company in that state. Its
case also is covered by what we have said.
There remains to be considered only the Uncle Sam Oil
Page 234 U. S. 562
Company. This company has a refinery in Kansas and oil wells in
Oklahoma, with a pipeline connecting the two which it has used for
the sole purpose of conducting oil from its own wells to its own
refinery. It would be a perversion of language, considering the
sense in which it is used in the statute, to say that a man was
engaged in the transportation of water whenever he pumped a pail of
water from his well to his house. So as to oil. When, as in this
case, a company is simply drawing oil from its own wells across a
state line to its own refinery, for its own use, and that is all,
we do not regard it as falling within the description of the act,
the transportation being merely an incident to use at the end. In
that case, the decree will be affirmed. In the others, the decree
will be reversed.
No. 507, decree affirmed.
Nos. 481, 482, 483, 506, and 508, decrees reversed.
|
234
U.S. 548|
* Docket title of these cases: No. 481. United States v. Ohio
Oil Company. No. 482. United States v. Standard Oil Company. No.
483. United States v. Standard Oil Company of Louisiana. No. 506.
United States v. Prairie Oil & Gas Company. No. 507. United
States v. Uncle Sam Oil Company. No. 508. United States v. Benson,
doing business under the Partnership Name of Tide Water Pipe
Company, Limited.
THE CHIEF JUSTICE, concurring:
Agreeing in every particular with the conclusions of the Court
and with its reasoning except as to the one special subject, my
concurrence as to that matter, because of its importance, is
separately stated. The matter to which I refer is the exclusion of
the Uncle Sam Oil Company from the operation of the act. The view
which leads the Court to exclude it is that the company was not
engaged in transportation under the statute -- a conclusion to
which I do not assent. The facts are these: that company owns wells
in one state from which it has pipelines to its refinery in another
state, and pumps its own oil through such pipelines to its
refinery, and the product, of course, when reduced at the refinery,
passes into the markets of consumption. It seems to me that the
business thus carried on is transportation in interstate commerce
within the statute. But, despite this, I think the company is
not
Page 234 U. S. 563
embraced by the statute, because it would be impossible to make
the statute applicable to it without violating the due process
clause of the Fifth Amendment, since to apply it would necessarily
amount to a taking of the property of the company without
compensation. It is shown beyond question that the company buys no
oil, and, by the methods which have been mentioned, simply carries
its own product to its own refinery -- in other words, it is
engaged in a purely private business. Under these conditions, in my
opinion, there is no power under the Constitution without the
exercise of the right of eminent domain to convert without its
consent the private business of the company into a public one.
Of course, this view has no application to the other companies
which the Court holds are subject to the act, because, as pointed
out, the principal ones were chartered as common carriers, and they
all, either directly or as a necessary result of their association,
were engaged in buying oil and shipping it through their pipes --
in other words, were doing in reality a common carrier business,
disguised, it may be, in form, but not changed in substance. Under
these conditions, I do not see how it would be possible to avoid
the conclusion which the court has reached without declaring that
the shadow, and not the substance, was the criterion to be resorted
to for the purpose of determining the validity of the exercise of
legislative power.
MR. JUSTICE McKENNA, dissenting:
I am unable to concur in the judgment of the Court or in the
reasoning upon which it is based. I pass by the construction of the
amendment of June 29, 1906, set out in the opinion, although its
application to the business of appellee companies is in
controversy. I shall assume its application, therefore, and pass to
the other and more serious questions. Extended discussion
Page 234 U. S. 564
of them is not now possible. Indeed, any discussion may not be
worthwhile, as I express only my individual views. In order to be
brief, I have to refer to the principles of the decision of the
Court, and indeed I am impelled more to dissent from them than from
the judgment. It is of little consequence, aside from the rights of
the appellee companies, whether they are subject to be regulated as
common carriers, but it is of great consequence whether the
sanctions of property be impaired.
The outside principle of the decision is the power of Congress
to regulate interstate commerce, but to assert that power solves
none of the difficulties of the questions in the case. I need not
pause to demonstrate that the exercise of that power is subject to
other provisions of the Constitution, and one of those provisions
is invoked by the appellees. It is contended that the Act offends
the Fifth Amendment in that it takes their property without due
process of law. But what is due process of law, and wherein does
its requirement limit the power of Congress? Neither question can
be answered in a word, and the usual considerations are encountered
when the courts are called upon to investigate the limits of
legislative power. Autocracy is free from such perplexities. When
authority can say, "The state -- it is I," it meets no impediments
to its exercise. But that extreme illustration is not necessary.
Even a government under a Constitution, if it be unwritten, may
have a power that leaves nothing for the courts to do other than to
enforce the fiats of legislative authority. Under a written
Constitution, however, there is a sovereignty superior to the
legislature -- that of the people expressed in the Constitution.
How to reconcile legislation with the limitations of the
Constitution and leave government practical in its exercise is a
problem which comes to this court often. It is the problem in the
case at bar. It is to be regretted that there is no indisputable
standard for its solution -- no indisputable test of
Page 234 U. S. 565
due process of law. We know that an act of legislation does not
necessarily satisfy it. It may, however, be sufficient, or, to be
more careful and accurate, there may be a regulation of the uses of
property whose legality cannot be denied. Regulation is not a
taking, and we are brought to the inquiry, what uses of property
will subject it to regulation? I mean regulation in a special
sense, not in the sense in which all property, whether its uses be
public or private, is subject to regulation. "Property," it is
said,
"becomes clothed with a public interest when used in a manner to
make it of public consequence, and affect the community at large. .
. . When, therefore, one devotes his property to a use in which the
public has an interest, he in effect grants to the public an
interest in that use, and must submit to be controlled by the
public for the common good, to the extent of the interest he has
thus created."
Munn v. Illinois, 94 U. S. 113;
Budd v. New York, 143 U. S. 517;
Brass v. North Dakota, 153 U. S. 391;
German Alliance Insurance Co. v. Lewis, 233 U.
S. 389. Manifestly the principle needs the definition of
the facts of the cases. In three of them, the fees for storage of
grain were regulated, in the other, the price of fire insurance;
but dominant in all, as giving character to the property, was the
fact that its use was voluntarily offered to the public. There was
no compulsion of use or service. This must be kept in mind as the
determining circumstance. Conduct may be regulated which cannot be
initially commanded. The rates of interest may be regulated, but
loans cannot be compelled. There is further illustration in a case
subsequent to those cited. In
W. W. Cargill Co. v.
Minnesota, 180 U. S. 452, an
injunction was sought against the operation of an elevator and
warehouse situated on the right of way of a railroad until its
operator should have obtained a license from the railroad and
warehouse commission of the state under a law of the state. The
defendant company bought and sold grain, although its
Page 234 U. S. 566
elevator was used for storing its own grain only. The state
court decided that the business was of a "public character," and
was "sufficiently affected with a public interest to warrant a very
considerable amount of regulation of it by the state." This
conclusion was put upon the ground that the elevator was a kind of
public market place, and it was important to see that correct
weights were had, uniform grades given, proper amount of dockage
taken, and no dishonest practice allowed. The provision for a
license was sustained. The act, however, provided for many other
regulations -- among others, for the receipt and storage of the
grain of others and the rates of charges therefor. The state court,
passing on these and other regulations, said that there were many
provisions in the act which applied only to warehouses and
elevators in which grain was stored for others or for the public,
and which could not apply to such warehouses as the one in
question, and there were perhaps provisions in the act which it
would be unconstitutional to apply to such warehouses. The court,
however, said: "Such matters need not be considered at this time.
The provision recognizing license is not one of these." One of the
judges of the court was of opinion that, on account of the
interdependence of the provisions of the act, many of them, when
applied to warehouses not used for the storage of grain by others,
were beyond the police power of the state, and therefore invalid,
and made the whole act so. This Court, by Mr. Justice Harlan,
sustained the judgment of the state court and said "that the mere
requirement of a license was not forbidden by the Fourteenth
Amendment." Answering the suggestion that other provisions were
repugnant to the Constitution of the United States, it was said
that the license would give authority to carry on the business
under the valid laws of the state and the valid regulations of the
commission. The case therefore manifestly decides that the use of
the warehouse by others could not
Page 234 U. S. 567
have been legally compelled, and in the other cases, as we have
seen, it was the Act of the parties, not the power of the law,
which devoted the property to the public interest. In the
Munn case, it was said of the owners of the elevators that
there was no attempt to compel them "to grant the public an
interest in their property, but to declare their obligations if
they used it in this particular manner." And further, "[h]e may
withdraw his grant by discontinuing the use; but so long as he
maintains the use, he must submit to the control."
In the cases cited, therefore, there was a regulation of uses
which were extended voluntarily to others. I recall no case where
the use was compelled, and by the use so compelled regulation was
justified. The case at bar has no fellow in our jurisprudence.
These considerations are not touched upon in the opinion of the
Court, and how far they affect the decision can only be
conjectured. It may be not at all. At any rate, other
considerations are given explicit prominence. The impulse of the
amendment is said to be the control which the Standard Oil Company
had acquired over the pipeline transportation of oil. It is further
said that it availed "itself of its monopoly of the means of
transportation" by refusing to carry
"through its subordinates any oil unless the same was sold to
them, and through them to it on terms more or less dictated by
itself, and thereby became master of the fields without owning
them."
It is not very clear whether this is intended as a statement
merely of the motive of the amendment or of its legal
justification. If stated as the motive of the amendment, I have no
concern with it; as a justification of the amendment, its
foundation must be considered.
The facts of the cases the opinion of the Court does not give.
They are, however, quite necessary to a discussion of the questions
which they present. I quote the summary of the Commerce Court (p.
802):
Page 234 U. S. 568
"The Prairie Oil & Gas Company is a corporation organized in
1900 under the laws of the State of Kansas. It owns and operates a
system of pipelines consisting of gathering lines in the
Mid-Continent field, in the States of Kansas and Oklahoma, a trunk
line from that field to Griffith in the State of Indiana, where it
connects with the Indiana pipeline, and a trunk line in the State
of Arkansas, connecting the Oklahoma pipeline with the pipeline of
the Standard Oil Company of Louisiana. This company has no
refinery, and its business is confined to producing, purchasing,
and selling crude oil, which it delivers to its customers by means
of the pipelines described. Its own wells yield only about 12,000
barrels per day, and it purchases approximately 70,000 barrels per
day on the average. Its trunk lines are about 860 miles in length,
of which some 300 miles are located on the right of way of the
Atchison, Topeka, & Santa Fe Railway Company under contract
arrangement with that company."
"The Uncle Sam Oil Company is a corporation organized in 1905
under the laws of the State (then Territory) of Arizona. It owns
and operates a pipeline from its wells in the State of Oklahoma to
its refinery at Cherryvale, Kansas. The extent to which this
company purchases oil from other producers, if it engages in that
business at all, does not appear from the record."
"Robert D. Benson
et al. are the members of a
partnership, organized in 1878 for the term of twenty years, and
reorganized in 1898 for a further term of twenty years, in
compliance with the laws of the State of Pennsylvania, and doing
business under the name of the Tide-Water Pipe Company (Ltd.). This
company transports oil from the Appalachian field in the western
part of Pennsylvania, and also oil received through connecting
lines from other fields, to the Tide-Water Oil Company refinery at
Bayonne, in the State of New Jersey. It also owns and operates
branch lines in New York and Pennsylvania, and a line extending
Page 234 U. S. 569
from Stoy, Illinois, through the States of Illinois, Indiana,
Ohio, and Pennsylvania. The greater part of the crude oil
transported by this company is purchased from other producers. The
lines which it owns and the Bayonne refinery which it serves are
under common or unified control."
"The Ohio Oil Company is a corporation organized in 1887 under
the laws of the State of Ohio. It owns and operates pipelines in
the States of Ohio, Indiana, and Illinois, and also leases and
operates a line from Negley, Ohio, to Centerbridge, in the State of
Pennsylvania. It is an extensive purchaser of crude oil from other
producers."
"The Standard Oil Company, designated, for convenience,
'Standard Oil Company of New Jersey,' is a corporation organized in
1882 under the laws of the State of New Jersey, and its principal
pipelines are the following: (a) a line extending from Unionville,
in the State of New York, near the boundary line of New Jersey,
through the latter state to its refineries at Bayonne; (b) a line
from Centerbridge, in the State of Pennsylvania, near the boundary
of New Jersey, through the latter state to its refineries at
Bayonne and Bayway, and (c) a line from Fawn Grove, in the State of
Pennsylvania, near the boundary of Maryland, through the latter
state to its refinery at Baltimore. The record indicates that much
the greater part of the oil transported through these lines, and
perhaps all of it, is oil which this company has purchased."
"The Standard Oil Company of Louisiana is a corporation
organized in 1909 under the laws of that state. It owns and
operates a refinery at Baton Rouge and a trunk line extending
thereto from the town of Ida, near the northern line of Louisiana,
and also gathering lines in the Caddo field, in the states of
Louisiana and Texas. It purchases a considerable part of the crude
oil which its lines transport."
"None of the petitioning corporations is organized or
Page 234 U. S. 570
derives any of its corporate powers from laws of the State of
its creation under which common carrier or other public service
corporations are organized, but each of them was formed and has
always conducted its operations under and in compliance with state
laws which relate to private as distinguished from public
business."
The companies do not possess the right of eminent domain, and
their lines are laid over private rights of way, except some of
them for short distances have laid their lines along the rights of
way of certain railroads under some contract arrangement with the
railroads, one of them for a distance of about 300 miles. They,
however, have in many instances also laid their lines across or
along public streets and highways by permission or consent of the
local authorities. None of them has ever held itself out as a
common carrier, or in fact ever carried oil for others, but they
have carried only such oil as they produced from their own wells or
purchased from other producers, and which they owned when the
transportation took place.
Concluding its recitation of facts, the Commerce court said:
"In short, so far as their legal status is fixed by the laws of
the states of their creation, and so far as their acts and attitude
could make them such, all the petitioners [appellee companies]
carry on a private business, at least in the sense that they
transport only their own oil and have always refused to transport
for others, and all of them have evidently sought and claimed to so
conduct their operations as to avoid any public activity which
might subject them to public regulation."
These being the facts, it is yet insisted that the appellee
companies are common carriers "in substance," and Congress, by its
action, has only made them so "in form," and that this is
unquestionably within the power of Congress. But there is something
more to be considered than an antithesis of words. There is an
antithesis of
Page 234 U. S. 571
legal consequences -- the subjecting of property to other uses
than those of its owner. A manifest taking, therefore.
But let me get away from any appearance of considering words or
forms of expression to an estimation of the facts. The Standard Oil
Company of New Jersey is made prominent, and the exemplar of all of
the other companies, and its stock ownership in some of them is
assumed to destroy their individuality and unite them all in
operation, character, and effect. Indeed, it is represented as the
single controlling force and master of the transportation of oil
"between the oil fields east of California and the Atlantic ocean."
Under its sway are pictured all the other companies except the
Standard Oil of Louisiana, the latter company, however, having a
baneful potency of dictation to the other owners in the oil fields,
as has its exemplar, the Standard Oil of New Jersey. In other
words, it is argued, the companies have made themselves masters of
their respective fields by the constraint of the sale of the oil of
other owners to them upon terms more or less dictated by them by
availing themselves of their "monopoly of the means of
transportation." This is the charge. The facts of the case do not
sustain it except as they exhibit the advantages of the possession
of property which others do not possess. Must it be shared by those
others for that reason? The conception of property is
exclusiveness, the rights of exclusive possession, enjoyment, and
disposition. Take away these rights and you take all that there is
of property. Take away any of them, force a participation in any of
them, and you take property to that extent. These are commonplaces,
but at times -- it may be always -- commonplaces are our best
guides when rights are concerned. They are pertinent to this case.
The employment of one's wealth to construct or purchase facilities
for one's business greater than others possess constitutes no
monopoly that does not appertain to all property. Such facilities
may give
Page 234 U. S. 572
advantages, and, it may be, power; so does all property and in
proportion to its extent. It may well, then, be asked -- what
extent of trade advantages, what degree of power in purchasing,
what superiority in facilities of transportation or disposition of
articles may be grounds of the exercise of congressional control?
If the owner of a small oil well may be given rights in the
facilities of the appellee companies, why may not the owner of a
small business be given rights in the facilities of a larger
business, if Congress sees fit to say that the public welfare
requires the gift? Can any privilege be claimed for oil that cannot
be claimed for other commodities? May a jobber of merchandise in
Washington who conducts a trade in Baltimore and other places, and
owns special facilities for the transportation of his merchandise
be compelled to share them with competitors who may not be able to
afford as ample ones, and in consequence be forced to sell their
property to him at a disadvantage? Or, recurring to the
illustration of
W. W. Cargill Co. v. Minnesota, can one
who erects elevators for the storage of grain of his own raising
(such instances exist), and uses it as well for grain of his
purchase (there are more of such instances), be compelled to share
their advantage with other growers or purchasers of grain? The
advantages of his situation are quite as manifest as the advantages
the appellees enjoy, and the effect on interstate commerce
transportation as marked. Upon the same principle, one who builds a
railroad to a coal field or to a forest must share it with other
owners in the field or forest if the ventures to purchase their
productions. Such is the principle of the present decision. Under
it, what attribute of private property is left?
Let us not exaggerate the conditions or by form of statement put
out of view essential elements. What duress is employed that is not
employed when terms are exacted as a condition of the use of
property? Or, rather,
Page 234 U. S. 573
and more accurately, what duress is used except the exclusion of
others from the use of property which they do not own? There were
no prior or present rights in other owners of oil wells to the use
of the lines of the appellee companies. They contributed nothing to
the construction of the lines, and their exclusion from their use
is the exclusion resulting from the separate ownership of property,
as distinguished from rights of community ownership.
There is quite a body of opinion which considers the individual
ownership of property economically and politically wrong, and
insists upon a community of all that is profit-bearing. This
opinion has its cause, among other causes, in the power -- may I
say the duress? -- of wealth. If it accumulates 51% of political
power, may it put its conviction into law and justify the law by
the advancement of the public welfare by destroying the monopoly
and mastery of individual ownership?
I submit, with deference, that it is misleading to say that the
use of the lines by other oil owners was permitted only on terms
dictated by the companies, and that, through such dictation, they
"became masters of the fields without owning them." And I take it
if the companies had not made purchases of oil or refused offers of
oil, they would not be held subject to the act. Such is the
situation of the Uncle Sam Company and the ground of decision in
regard to that company. It is not held to be within the act. It
seems to be minimized and considered not big enough for the
application of the law, and yet it owns and operates a pipeline
from the oil fields of Oklahoma to its refineries in Kansas. The
extent to which it purchases oil from producers, if it does so at
all, does not appear from the record. It may be supposed that, if
it venture to make purchases of oil, it will lose its immunity. But
why its exemption? Why is the fact of purchases of oil important?
It is not the concern of the small oil owners to get to market?
Indeed, is not that the advantage they get
Page 234 U. S. 574
from the law, thereby being able to break away from the supposed
subjection to, and "duress" of, the superior advantages of the
appellee companies? The result which the amendment under review was
intended to effect as beneficial to the public welfare. The query
then occurs, may all of the other oil companies give up their
purchases, and, if they should, will they thereby get the freedom
of the Uncle Sam Company? What, then, of the owners of oil? It may
be they cannot sell their oil at all -- the local market is taken
from them, a distant market is not possible for them. Is not the
public welfare concerned for them in such situation? Must they
remain in it dependent upon the richer owner balancing the
advantages of remaining under the law or becoming free from it? Or
may the power which has brought them to such situation extricate
them from it by one more act of legislation in the public interest,
and to take from the companies their mastery of the fields of
production?
United States v. Delaware & Hudson Co.,
213 U. S. 366,
opens a curious speculation and illustrates the effect of the power
exercised in the legislation under review. The appellee companies,
the decision is, engaging in interstate commerce, may be declared
common carriers and made to carry the products of others as well as
their own products. Then, having been made common carriers, under
the authority of the cited case, they can be forbidden to carry
their own products, and so by legal circumlocution property legally
devoted to the use of its owners is forbidden such use and devoted
wholly to the use of others. A queer outcome.
I have extended this discussion beyond what I had intended. Much
more, however, could be said, and decisions adduced on the various
elements of the case. Prophecies of the result of the principles of
the decision could be made which I am afraid could not be
pronounced fanciful, and projects whose shadows may even now be
discerned
Page 234 U. S. 575
will plead a justification by the decision in these cases. It is
to be remembered that there are many jurisdictions of legislation.
It is to be remembered that there cannot be one measure of control
for Congress over private property and its uses and another measure
of control for the states. In other words, the power which Congress
has in its domain the states have in their domain. Alarms, however,
are not arguments, and I grant that legislation must be practical.
But, while making this concession, and giving to the legislation in
question the presumption of constitutionality to which all
legislation is entitled, I am yet constrained to say that it
transcends the limits of the power of regulation, and takes
property without due process of law.
As I have not the power of decision, I do not enter into a
discussion of the facts which distinguish the cases. It may be that
the judgment of the Commerce Court as to the Standard Oil Company
should be reversed because the lines of the company were common
carriers before their acquisition, and it may be that the Prairie
Oil & Gas Company was made a common carrier by the law which
created it. This, however, is in controversy.
I concur in the judgment as to the Uncle Sam Oil Company. From
the judgments as to the other companies I dissent.