The powers conferred on the Interstate Commerce Commission by
the Act to Regulate Commerce, as amended (Acts of February 4, 1887,
24 Stat. 379; March 2, 1889, 25 Stat. 855; June 29, 1906, 34
Stat.
Page 242 U. S. 209
584, and June 18, 1910, 36 Stat. 539), do not include the power
to require carriers to provide and furnish oil tank cars, no
question of discrimination being involved.
Without attempting to define the measure of the carrier's duty
to satisfy the needs of shippers by adding in quantity or kind to
its car equipment,
held that neither by the Act of 1887
nor the amendatory Act of 1906 did Congress intend that the
enforcement of such duty might be compelled by orders of the
Interstate Commerce Commission.
In reaching this conclusion, much weight is properly attached to
the fact that it accords both with the construction placed by the
Commission upon the Act of 1887 before the Act of 1906 was adopted
and also with the explanation which the Commission made to Congress
concerning the occasion and scope of the Act of 1906 when that
statute was in process of enactment.
In construing the amendment of 1906, the fact that, as here
involved, it was drawn and recommended by the Commission justifies
in this case the assumption that, in legal import, it was not
intended to exceed the Commission's recommendation.
The neglect or refusal to furnish tank cars is not a "practice"
within the meaning of § 15 of the Commerce Act, as amended June 18,
1910.
When a carrier, in its published tariffs, denies any obligation
to furnish tank cars, the fact that it publishes rates for
commodities so carried may not be construed as an offer,
constituting a duty, to furnish such cars, and a finding by the
Commission to the contrary is reviewable as a conclusion of
law.
Whether the order of the Commission was invalid because
requiring the Railroad Company to supply cars for movement over
other lines, or because of being nonadministrative, or uncertain
and indefinite, not decided.
Chicago, Rock Island & Pacific Ry. Co. v. Hardwick
Elevator Co., 226 U. S. 426, and
other decisions of this Court, explained and distinguished.
227 F. 911 affirmed.
On petition of the Pennsylvania Paraffin Works and the
Crew-Levick Company, the Interstate Commerce Commission made the
following order:
"It is ordered, that the Pennsylvania Railroad Company be, and
it is hereby, notified and required to cease and desist, on or
before August 15, 1915, and thereafter to
Page 242 U. S. 210
abstain, from refusing upon reasonable request and reasonable
notice therefor to provide and furnish tank cars to the
complainants herein for interstate shipments 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 required 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 F.
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% of the oil produced by the Paraffin Company was
shipped in tanks, 1 1/2% in barrels loaded in cars other than tank
cars, and 7 1/2% in pipelines, while of the shipments made by the
other company 86.8% moved in tank cars, 4.7% in barrels and 8.5% in
pipelines.
(2) For a long time, the bulk of refined oil in the United
States has been shipped in tank cars, and at present 91% 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
Page 242 U. S. 211
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 1/2 to 3 3/4 cents
a gallon above the cost of transportation in tank cars, and this
makes such method of transportation practically prohibitive, and
the refusal of the railroad to furnish an adequate supply of tank
cars would tend to drive out of business refiners who are unable to
supply themselves with enough cars to move their own products, and
witnesses for the railroad admitted that tank cars are an economic
necessity for the transportation of refined products.
(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.
(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.
(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 furnish 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.
To the request of complainants, the railroad company
replied:
"We beg to say that the railroad company is not prepared
Page 242 U. S. 212
to increase its present tank car 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. "
Page 242 U. S. 217
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.
The judgment of the district court had somewhat broader basis.
The court said:
"The act to regulate commerce
Page 242 U. S. 218
does not confer upon the Interstate Commerce Commission all
power over cars and other instrumentalities of shipment."
And that, aside from special enactments,
"federal legislation regulating commerce, insofar, at least, as
it is contained in the Act of 1887 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
possess, or to acquire better facilities than 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 power conferred by the
Interstate Commerce Act of 1887, as amended in 1906, 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
"it is the duty of every interstate carrier 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
Page 242 U. S. 219
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. 379) provided that --
"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."
The word "transportation" is the crucial word, and its
definition in the amendment of 1906 is as follows:
". . . 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 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. 855, 858.
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
Page 242 U. S. 220
Scofield v. Lake Shore & Michigan Southern Railway Co., 2
I.C.C. 90. 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 railroads 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 diversities 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
facilities 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 embrace car equipment for the
origination of freight, and, referring to § 1, it was said:
"The term 'instrumentalities of shipment 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
Page 242 U. S. 221
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
nonetheless 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.
A 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."
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 I.C.C. 360, 373
(1904). It was there said that the Commission was of opinion
Page 242 U. S. 222
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
livestock 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 fulfill 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 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
Page 242 U. S. 223
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
Page 242 U. S. 224
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."
Under the heading, "Terminal Roads, Elevator Charges, and
Private Cars," the following was said:
"It has been suggested that the Congress should prohibit
railways from employing any agency or using any facility in the
transportation of property which is furnished by the owner of the
property. We should hesitate to recommend at this time so drastic a
measure as that.
Page 242 U. S. 225
Assuming that such a law would be a constitutional exercise of
authority, it would seriously interfere with property rights which
have grown up under the present system. Moreover, there are many
instances in which the service can be rendered or the facility
furnished more advantageously both to the shipper and railway, and
without injury to the public, if provided by the shipper
himself."
After commenting on the amendment to § 16 and the added § 16a,
the Commission explained that --
"It will thus be seen that the substantial amendments proposed
are few in number and easily understood, the remaining changes
being merely such as are needful to harmonize other parts of the
act with the main amendments . . . In brief, the proposed measure
amends certain sections of the act to regulate commerce and is
confined to such recommendations as are deemed necessary to effect
its intended purpose, and thereby furnish adequate protection
against excessive and discriminating charges."
It will be observed that there is not one word in the report
that indicates that there was a necessity or desire for the power
exercised in the order under review. Indeed, there was directly
expressed an approval of private cars, and the opinion declared
that they were a facility which could be furnished more
advantageously both to the shipper and the railroad, without injury
to the public, if provided by the shipper himself, and the
recommendation was that they be brought under the jurisdiction of
the Commission and thereby prevent oppressive and discriminatory
practices, the principle being, to borrow from another, that all
services incident to transportation, whether primary (carrying the
goods) or accessorial (caring for the goods in transit whenever
such care calls for special facilities or special equipment),
should be subject to the same supervision and regulation.
Page 242 U. S. 226
But is there anything in the words of the amendment which
exhibits on the part of Congress a larger knowledge of conditions
than the Commission had, and that Congress, in a broader
comprehension and judgment of the conditions and their remedy, gave
the Commission a greater jurisdiction than that which in any way
occurred to it was necessary?
The act as it was enacted in 1887 defined the term "railroad"
and the term "transportation," the latter as follows: "And the term
"transportation" shall include all instrumentalities of shipment or
carriage." The definition was very comprehensive, and needed not
the mobilization of its denotation; but this subsequently was
attempted. Words, indeed, were multiplied -- was meaning
changed?
In 1906 the term "transportation" was defined to "include cars
and other vehicles and all instrumentalities and facilities of
shipment or carriage. . . ." The words are not much less general
than the words of the Act of 1887. There is no advance made by them
or enlargement of meaning. There was simply a useless tautology.
But granting it was not, and that Congress deemed a special
declaration of things to be necessary, such declaration did not
alter the relation of the companies to them. The duty which
attached to "instrumentalities" of the Act of 1887 attached to the
things covered by its comprehensive generality,-to the things
declared in the amendment of 1906 -- that is, to "cars,"
"vehicles," "facilities." And this duty under the Act of 1887, we
have seen, had, in the opinion of the Commission, the sanction only
of the common law. Under the amendment, the most that can be said
is that the duty is particularized. Its sanction is not
enlarged.
But other words occur which, it is contended, have such effect.
These words are: "And it shall be the duty of every carrier . . .
to provide and furnish such transportation upon reasonable request
therefor . . ."
Page 242 U. S. 227
This, however, is but the expression of a necessary implication.
It was useless to declare that whatever a carrier must do, he must
do "upon reasonable request." The duty having been imposed, it
necessarily could be demanded. But the expression of the right, if
it needed expression, adds nothing of indication to the previous
words of the tribunal by which the demand was to be enforced.
But it is said the duty having explicit declaration, the power
to enforce it was found in § 12 as amended March 2, 1899, as
follows: "And the Commission is hereby authorized and required to
execute and enforce the provisions of this act." 25 Stat. 855,
858.
But this casts us back to our general considerations, to which
we may only add that there was no question of the duty of carriers
either under the Act of 1887 or under the amendment of 1906. It was
their duty under both to furnish the instrumentalities of
transportation. The question is whether, under the latter, as under
the former, jurisdiction to enforce the duty was at common law in
the courts, or under the statute and in the Commission, and we have
seen that it was the view of the Commission that the remedy was in
the courts, and that the amendment of 1906 was not intended to and
did not change the remedy. In other words, that Congress in effect
accepted the explanation of the Commission and approved its
decisions. We repeat, the amendment of 1906 was drawn by and
recommended by the Commission, and it may be assumed was not
intended to have nor given larger import in the law than it had in
the recommendation.
United States v. Louis. & Nash. R.
Co., 236 U. S. 318,
236 U. S. 333
et seq.
There was amendment in 1910 not of § 1 in any particular
relevant to our discussion, but of §§ 13 and 15. It was said by the
committee which reported them for consideration that, under § 15,
as it then stood, the authority
Page 242 U. S. 228
of the Commission to enter an order was "confined to the subject
of rates for transportation and regulations or practices
affecting such rates,'" and the establishment of through routes
where "no reasonable or satisfactory through route exists." And the
committee added that, as recommended to be amended, § 15 "will have
its scope largely increased and the jurisdiction of the Commission
will be much enlarged;" and that
"by the amendment, the Commission is given jurisdiction to enter
orders not only regarding rates, but regarding classifications,
regulations, or practices, whether they affect rates or not, and
make orders requiring conformity thereto."
"Practices" were not otherwise or precisely defined either in
the report or in the amendment recommended and as finally passed.
Regarding only its broad generality, anything may be asserted of
it; regarding its context and the conditions which existed, an
immediate limitation of it is indicated, made necessary as we shall
presently show.
Section 15 provides that, whenever, after full hearing, as
provided by § 13, the Commission should be of opinion that any
individual or joint rates collected by a common carrier or "that
any individual or joint classifications, regulations, or practices
whatsoever of such carrier or carriers subject to the provisions"
of the act are "unjust or unreasonable or unjustly discriminatory,
or unduly preferential or prejudicial or otherwise in violation of
any of the provisions of" the act, the Commission is authorized and
empowered to determine and prescribe what shall be the just and
reasonable rate or rates and "what individual or joint
classification, regulation, or practice is just, fair, and
reasonable," and make an order that the carrier shall cease and
desist from the charging of excessive rates, and shall adopt the
classification and conform to and observe the regulation or
practice prescribed, the order to continue such time, not exceeding
two years, as shall be prescribed by the Commission.
Page 242 U. S. 229
Applying the section, it is contended that the neglect to
provide or certainly the refusal to furnish tank cars is a
"practice," and became especially so by the reply made by the
railroad to the request to furnish them.
Let us test the contention and see where it takes us. The
request was for a special facility, a combination of package and
car, and the question, then, is whether the neglect to provide it
or to furnish it was a "practice" within the meaning of § 15. The
far-reaching effect of an affirmative answer is instantly apparent,
and there must be hesitation to declare it from the use of so inapt
a word as "practice." Following a well known rule of construction,
we must rather suppose its association was intended to confine it
to acts or conduct having the same purpose as its associates. And
there were many such acts for which the word could provide --
practices which confused the relation of shippers and carriers,
burdened transportation, favored the large shipper, and oppressed
the small one. These have illustrations in decisions of the
Commission. And this was purpose enough, remedied all that was
deemed evil in privately owned cars of any type. Beyond that it was
not necessary to go; beyond that there were serious impediments to
going, and we cannot but believe that, if beyond that it was
intended to go, there would have been explicit declaration of the
intent, with such provision as to notice and time and preparation
as its consequences would demand, not ambushed in obscurity and
suddenly disclosed by construction to turn accepted custom into
delinquency -- a construction that could be disputed and was
disputed.
Three commissioners out of seven dissented, they declaring that,
if the act conferred power upon the Commission to order a carrier
to enlarge its complement of cars, it would follow that the
Commission had also the power to order enlargement of terminal
facilities, increase in the number of locomotives, and extension of
tracks or branches.
Page 242 U. S. 230
In fact, it was said that no facility of transportation would be
exempt. The purpose of the provision reviewed was declared to be
the regulation of facilities possessed by the carrier, that there
should be no unjust discrimination, and the plain intent to be that
the shipper should not be required to deal with any other than the
carrier. And this, as far as we can glean from the extensive
congressional literature, was the end sought. In other words, it
was on account of the abuses of the private car system, not in its
uses, that legislation was urged.
There was some sentiment outside of the Commission for the
abolition of the private car system, but abolition was not
attempted. It would have been a shortcut to the solution of the
problems, and could easily have been accomplished by requiring the
railroads to furnish all of the equipment necessary for taking care
of all kinds of traffic. But neither the government nor the
Commission contends for such an extreme, and to forestall the
charge that the order has such tendency represents that the duty of
the carrier to furnish special equipment is not absolute, but
relative to the conditions of trade and the business of the
shipper. This weakens the principle upon which the duty is based.
If there be a duty, it would seem necessarily to be universal. And
such contention is growing.
A friend of the court appears in the form of a salt company, and
presents an argument in support of the order of the Commission and
asserts the right to a special equipment for the transportation of
salt in bulk.
Little more need be said. Private cars came into existence as
conveniences or necessities to particular businesses, developing by
degrees and differentiating according to conditions. It was said in
argument that there are different kinds of tank cars for different
oils and liquids, and there are cars for livestock, fruit, live
poultry, milk, and, as we have seen, salt in bulk. What others
there are neither the record nor the argument has given us
information,
Page 242 U. S. 231
nor the extent of their specialization. However, the information
is not needed. The facts of the present case illustrate the
condition of the carriers of the country. Describing it, the
Commission says:
"The bulk of the movement of refined oil is in tank cars owned
by the shippers. In 1887, the Pennsylvania Railroad acquired 1,308
tank cars, some of which have subsequently been sold to independent
refineries. Defendant now owns 499 tank cars, all that remain of
those purchased in 1887, and 482 of which are furnished to shippers
of oil located on its lines. The other railroads east of the
Mississippi River own, in the aggregate, only 303 tank cars. The
privately owned tank cars east of the Mississippi aggregate about
27,700, and the total number of tank cars owned in the United
States was given as approximately 40,000."
This, then, was the situation of the railroad, not dissimilar to
that of other railroads, not therefore created in deliberate fault,
but in accommodation to conditions useful to shippers, advantageous
to the railroad, beneficial to the public, as the Commission had
declared, and yet a change is suddenly required. The burden of the
requirement we shall presently notice.
Of course, if there is a duty upon a carrier to furnish tank or
other special cars upon request, its enforcement cannot be arrested
by the burden it imposes; but here again the thought obtrudes,
which we have already expressed -- it may be to tiresome extent --
that if Congress had intended such consequence with all that it
implies of expense, directly and indirectly, it would not have left
its intention to be evolved from obscure language, but would have
put it in explicit declaration and with notice and time for
accommodation to it.
It is to be remembered that the tank car is both package and
car, must have special mechanical means of loading and unloading.
May these, too, be ordered? Are they
Page 242 U. S. 232
not a "method and manner of presenting, marking, packing, and
delivering property for transportation," to use the language of §
1, as amended?
It is difficult to particularize all that the ruling of the
Commission implies of power. What of omission or commission in the
carrier's relation to the public may not be said to be a practice
or practices in the broad sense attempted to be given to those
words? A railroad's powers are its duties, bearing, of course,
obligations, and all of them by the asserted construction are swept
under the jurisdiction of the Commission -- so swept by a single
word, not of itself apposite, and determined besides by its
association against the contention. This was apparent to the
dissenting Commissioners, and repelled their concurrence. Well
might they have recoiled from going to such extreme upon doubtful
implication, and have been impelled to declare, as they did
declare, that if such power was given, it logically and necessarily
extended to every facility of transportation.
As to whether this is desirable we express no opinion, and we
only mean now to say that it was not expressed as desirable in the
statutes which we have considered, nor was there a word or a line
from the Interstate Commerce Commission, so far as the record shows
or intimates, of recommendation of such result. Indeed, there is
intimation that such result would be radical, and, as said by the
railroad company,
"the Safety Appliance Acts indicate that, when Congress
contemplates the imposition of obligations with respect to the
equipment of carriers, it covers the subject by careful, specific
rules."
And we may further say with the company that
"it is pertinent to inquire why committees of Congress should
consider, as they continue to do from time to time, the wisdom of
devolving on carriers the duty to furnish steel coaches for
passenger traffic, if already the provisions of the act to regulate
commerce are broad enough to cover matters of this kind?"
And
Page 242 U. S. 233
there is strength in the observation of the railroad company
that, if the argument based upon the word "practice" or "practices"
were sound,
"it could be contended with equal reason that every detail of
railroad operation is a practice within the meaning of the act; why
should the Commission ask that it be empowered to require the use
of the block signal system? (Report of 1913, page 82.) Why should
the Commission make this request if, because of its jurisdiction
with respect to practices, it is already endowed with power to
regulate the details of operation of carriers?"
The United States and the Commission insist that they have
authority of cases for their two fundamental propositions, to-wit:
(1) that it is the duty of the railroad to furnish equipment for
the transportation of products, and (2) that the Commission has the
jurisdiction to enforce that duty.
The authorities upon the first proposition we are not concerned
to review. The duty, as far as this question is concerned, may be
admitted -- certainly admitted in its general sense. But we need
not pause to distinguish its application in the cases to special
equipment as distinguished from common equipment, or how much the
decisions were based upon the belief of the shipper, justified or
encouraged by the railroads, that the equipment required would be
furnished.
With the second proposition we are concerned, and a
consideration of the cases becomes necessary, as they are cases in
this Court and are cited to sustain the power of the Commission.
They are as follows:
Chicago, Rock Island & Pacific Ry. Co.
v. Hardwick Farmers Elevator Co., 226 U.
S. 426;
Ellis v. Interstate Commerce
Commission, 237 U. S. 434;
Yazoo &c. R. Co. v. Greenwood Grocery Co.,
227 U. S. 1;
Missouri, Kansas & Texas Ry. Co. v. Harris,
234 U. S. 412;
Menasha Paper Co. v. Chicago & N.W. Ry. Co.,
241 U. S. 55.
Page 242 U. S. 234
The
Hardwick Elevator case passed upon a law of
Minnesota, known as the Minnesota Reciprocal Demurrage Law, which
made it the duty of a railroad company on demand from a shipper to
furnish cars for transportation at terminal points within
forty-eight hours and at intermediate points within seventy-two
hours after such demand, Sundays and legal holidays excepted. A
penalty was imposed for each day's delay. This Court held that, by
§ 1 of the Hepburn Act, Congress had legislated concerning the
delivery of cars in interstate commerce by carriers subject to the
act. This was based upon the definitions of § 1 of the provisions
of §§ 8 and 9. The questions in the case were not those in the
present case. The kinds of equipment were not involved, nor the
questions dependent upon them. The only question was as to whether
Congress had entered the field of regulation.
In
Yazoo &c. R. Co. v. Greenwood Grocery Co., there
was also involved a statute which penalized delays in delivering
cars. It was held to be within the decision of the
Hardwick
Elevator case, as it undoubtedly was.
In the
Harris case, the Carmack Amendment was decided
as not excluding a state statute allowing an attorney's fee in
certain actions based on claims for small amounts against railway
companies. It has no relevancy to the present case.
The
Ellis case grew out of a right asserted by the
Interstate Commerce Commission to inquire whether Armour &
Company, shipping packinghouse products in commerce among the
states, was controlling the Armour Car Lines and using them as a
device to obtain concessions from the published rates for
transportation. A series of questions were put to a witness in
regard thereto which he refused to answer, and proceedings to
compel his testimony were instituted. A question of the power of
the Commission was presented, and that was made to depend upon
whether the Armour Car Lines was a common
Page 242 U. S. 235
carrier subject to the Interstate Commerce Act. It was replied
that the Car Lines Company had no control over the motive power and
movement of the cars, and was not a common carrier subject to the
act. And this was said:
"It is true that the definition of transportation in § 1 of the
act includes such instrumentalities as the Armour Car Lines lets to
the railroads. But the definition is a preliminary to a requirement
that the carriers shall furnish them upon reasonable request, not
that the owners and builders shall be regarded as carriers,
contrary to the truth."
The language was perfectly apposite to the question under
consideration, the relation of the Armour Car Lines to the Armour
Company and to the railroad. The cars the latter obtained from the
Car Lines Company constituted the equipment of the railroad
company, and were, of course, subject to the provisions of the
Interstate Commerce Act.
The question with which the present case is concerned was not
presented to the Court nor intended to be decided. The testimony
sought by the Commission was to expose and prevent what were
supposed to be discriminatory practices, and the right to require
the testimony depended, it was the effect of the decision, upon the
relation of the Armour Company to the Armour Car Lines through the
railroad, and whether what was paid to the Armour Car Lines was in
effect paid to the Armour Company and made a means of
discrimination. This view was rejected and it was said:
"It does not matter to the responsibility of the roads whether
they own or simply control the facilities, or whether they pay a
greater or a less price to their lessor,"
the lessor of that case being the Armour Car Lines, and, as it
was not shown that it was merely the tool of the Armour Company, it
had immunity from the investigation. The case therefore is not
authority for the proposition which it is urged to support.
Menasha Paper Co. v. Chicago & N.W. Ry. Co.
needs
Page 242 U. S. 236
no comment. It quotes but attempts no explanation of the words
of the statute that is relevant to our present inquiry. Indeed, in
all of the cases, the points of inquiry and decision were different
from the case at bar. They declared or enforced or recognized the
general duty of carriers under the particular facts and the law to
which the carriers were subject.
It is next contended by the United States that the railroad has
held itself out specifically to carry oil in tank cars, and the
fact, it is said, has been found by the Commission, and is not
reviewable, citing
United States v. Louisville & Nashville
R. Co., 235 U. S. 314,
235 U. S. 320.
We are unable to assent.
The railroad company, in its answer to the petition before the
Interstate Commerce Commission, alleged that Rule 29 of the
official classification No. 39, providing rates for articles in
tank cars, stated that the carriers whose tariffs were covered by
such classification did not assume any obligation to furnish tank
cars. There is a concession in the brief of the Interstate Commerce
Commission that such was the published tariff, though contesting
its efficacy to devest the company of its duty as a carrier. This
might be if there was a duty, but the United States seeks to
establish the duty from the offer of the company, and must take the
offer as made, and cannot, nor can the Commission, ignore its
explicit qualification that the company assumed no obligation to
furnish tank cars. The finding of the Commission therefore was one
of law, and not of fact, and is reviewable.
The railroad company, besides the contentions of want of power
in the Commission to make the order under review, object to it (1)
in that it is defective because it requires the company to supply
cars for movement over the lines of other carriers, and (2) that it
is not administrative in character, but is uncertain, indefinite,
and unlawful.
Page 242 U. S. 237
In support of the first contention, the railroad company points
out that the company owns more tank cars than all of the other
carriers east of the Mississippi River, amounting at the time of
the hearing to 499 cars. The total ownership of other cars east of
the Mississippi River amounted to 303, and the privately owned tank
cars to 27,700. It therefore appears, it is said, that the railroad
ownership is less than 3% of the total ownership, and that, of this
3%, the company is furnishing more than half. The company therefore
asserts that, if it be compelled to furnish all of the tank cars
required for the transportation of oil on its line, irrespective of
their destination, it is obvious that a burden out of all
proportion is placed upon it. It further complains that, although
the New York Central Railroad serves the oil companies equally with
it, no order is made against that company, but, on the contrary,
the entire burden is devolved upon it.
In support of the second contention, the company asserts that
the order of the Commission is not administrative is indicated by
decisions of this Court in actions for failure to furnish cars. The
cases are
Louisville & Nashville R. Co. v. Cook Brewing
Co., 223 U. S. 70
(1912);
Eastern Ry. Co. v. Littlefield, 237 U.
S. 140 (1915);
Pennsylvania R. Co. v. Puritan Coal
Mining Co., 237 U. S. 121
(1915);
Illinois Central R. Co. v. Mulberry Hill Coal Co.,
238 U. S. 275
(1915).
Again, it is charged that the order expressed by a legislative
principle has the generality of such principle without any
criterion of application. The order requires the company to
"provide . . . upon reasonable request and reasonable notice at
complainants' respective refineries, tank cars in sufficient number
to transport complainants' normal shipments in interstate
commerce."
What is a reasonable request or reasonable notice, and what are
normal shipments? The order affords no answer, and if the railroad
company ventures, however honestly,
Page 242 U. S. 238
any resistance to a request or notice not deemed reasonable, or
to shipments not deemed normal, it must exercise this right at the
risk of a penalty of $5,000 a day against all of its responsible
officers and agents. These considerations are very serious
(
International Harvester Co. v. Kentucky, 234 U.
S. 216;
Collins v. Kentucky, 234 U.
S. 634), but the view we have taken of the power of the
Commission to make the order, however definite and circumscribed it
might have been made, renders it unnecessary to pass upon the
contentions.
Decree affirmed.