Appellee owns and operates a pipeline from its refinery in
Oklahoma to its terminals in other States. It uses the pipeline
solely to carry its own refined petroleum products. No other
pipeline or refiner has connections with appellee's line, and no
other refiner has ever shipped products through it. At each of its
terminals, appellee has storage facilities from which it makes
deliveries to jobber purchasers, who supply their own
transportation therefrom. At two of its terminals, it has ethyl
plants where it processes 20% of its products. Appellee presently
handles 1.98% of the total products consumed in its marketing area.
There are ample common carrier pipeline facilities available to
these markets, and no refinery or other pipeline company has
requested a connection with appellee. In an earlier proceeding,
Champlin Refining Co. v. United States, 329 U. S.
29, this Court found that appellee was a "common
carrier" within the meaning of § 1 of the Interstate Commerce Act,
and sustained a Commission order under § 19a requiring appellee to
file valuation data, maps, charts, etc. pertaining to its
operations.
Held:
1. A subsequent order of the Commission is sustained insofar as
it requires appellee, under § 20 of the Act, to file annual,
periodic and special reports, and to institute and maintain a
uniform system of accounts applicable to pipelines. Pp.
341 U. S.
294-297.
2. Insofar as the order requires appellee, under § 6 of the Act,
to publish and file schedules showing rates and charges for
interstate transportation of refined petroleum products -- which
might force appellee to devote its pipeline at least partially to
public use -- it goes beyond what Congress contemplated when it
passed the Act, and it cannot be sustained. Pp.
341 U. S.
297-301.
95 F. Supp. 170, affirmed in part and reversed in part.
The Interstate Commerce Commission issued an order requiring
appellee to take certain steps under §§ 6 and 20 of the Interstate
Commerce Act. 274 I.C.C. 409. A three-judge district court denied
enforcement. 95 F.Supp.
Page 341 U. S. 291
170. On direct appeal to this Court,
affirmed in part and
reversed in part, p.
341 U. S.
301.
MR. JUSTICE CLARK delivered the opinion of the Court.
Section 1 of the Interstate Commerce Act provides that "common
carriers" engaged in the "transportation" of oil or other
commodities shall be subject to the regulatory requirements
specified in other sections of the statute. [
Footnote 1] In an earlier proceeding, this Court
found that Champlin, as owner of a pipeline, was a "common carrier"
within the meaning of § 1, and on the record there presented the
Court upheld an ICC order under § 19a(a)-(e) of the Act requiring
the company to submit valuation data, maps, charts and other
documents pertaining to its operations. [
Footnote 2]
Champlin Refining Co. v.
United States, 329 U.S.
Page 341 U. S. 292
29 (1946). The present proceeding involves a subsequent ICC
order directing Champlin (1) to file annual, periodic and special
reports, and to institute and maintain a uniform system of accounts
applicable to pipelines, both under § 20 of the Act; [
Footnote 3] and (2) to publish and file
schedules showing the rates and charges for interstate
transportation of refined petroleum products, pursuant to § 6.
[
Footnote 4]
Page 341 U. S. 293
A specially constituted three-judge District Court, with one
member dissenting, refused to enforce the order on the ground that
Champlin, at least for the purposes of §§ 6 and 20, is not within
the class of carriers intended to be regulated by the Act. It held
further that to impose the requirements of § 6 on Champlin would be
to take its property without due process in violation of the Fifth
Amendment. 95 F. Supp. 170. The Government and the Commission
appealed, 28 U.S.C. §§ 1253, 2101(e), 2325.
The facts here are substantially the same as in the earlier
case. Champlin owns and operates a pipeline running from its
refinery at Enid, Oklahoma, to terminals at Hutchinson, Kansas,
Superior, Nebraska, and Rock Rapids, Iowa -- a distance of 516
miles. It uses the pipeline solely to carry its own refined
petroleum products, such as gasoline and kerosene. No other refiner
has connections with the line, and none has ever shipped products
through it. The line does not connect with any other pipeline.
Champlin has storage facilities at each of its three terminals.
Jobbers purchasing Champlin products supply their own
transportation from the storage tanks to their bulk depots.
Since the first case, there has been a change in Champlin's
method of quoting prices. At the time of the earlier proceeding,
the price was computed as f.o.b. the Enid refinery, plus a
differential equal to the through rail rate from Enid to the
purchaser's destination minus the charges for local transportation
between the nearest pipeline terminal and the destination. However,
Champlin made frequent and substantial departures from this formula
in order to meet competitive prices at various locations. In May,
1948, the company began quoting prices as f.o.b. the respective
terminals, a policy which is still in effect. But, as before,
adjustments are made so that
Page 341 U. S. 294
delivered prices to jobbers will be competitive with those
offered by other refiners.
On the basis of these and other facts, the Government contends
(1) that there are no significant factual differences between this
and the prior case, and therefore Champlin is barred by collateral
estoppel from relitigating the holding of this Court that it is a
"common carrier" engaged in "transportation" within the meaning of
§ 1 of the Act; (2) that, since the definition of "common carrier"
in § 1 applies to §§ 6 and 20 as well as to § 19a, the Court's
prior holding
per se establishes the validity of the
present order; (3) that, even if estoppel does not apply, the facts
are adequate under the statute to support the Commission's order;
(4) that the alleged constitutional question is frivolous.
Champlin claims (1) that factual changes remove this case from
the realm of collateral estoppel; (2) that the Court specifically
reserved the statutory issue presented by this case, namely whether
the ICC may convert a private carrier into a common carrier for
hire, and (3) that the lower court was correct in holding that the
Act violates the Fifth Amendment if construed to authorize the
ICC's order.
We agree with the Government that there have been no significant
factual changes in Champlin's operations since the prior case. The
practice of quoting prices f.o.b. Enid made it superficially more
obvious that transportation charges were being collected, a point
which the Court brought out. 329 U.S. at
329 U. S. 34.
And the record indicates that the change to an f.o.b. terminal
formula resulted in minor alterations in the pattern of relative
delivered prices at various locations. But Champlin is still
transporting, and unless it has launched on a calculated plan of
bankruptcy, its prices, on the average, are necessarily intended to
cover transportation costs as well as other costs. Champlin further
points out that it has constructed
Page 341 U. S. 295
ethyl plants at two of its pipeline terminals, and is there
processing some 20 percent of its products. It claims that this
change makes the pipeline a part of "manufacturing" facilities, and
thus brings the company within the
Uncle Sam rule, which
excepted a class of gathering lines from the coverage of the Act.
Pipe Line Cases, 234 U. S. 548,
234 U. S. 562
(1914). But a Champlin officer testified in this case that the
company has "always done some blending and treating" of its
products at the terminals, and 80 percent of the products are still
transported in their final form. Hence, there is no justification
for reconsidering this Court's refusal to "expand the actual
holding" of the
Uncle Sam case to include Champlin, and
its ruling that Champlin was a "common carrier" as defined by § 1
of the Act.
However, we disagree with the Government's contention that the
prior holding disposes of all the statutory issues in this case. To
be sure, the literal terms of the statute lend some weight to the
Government's argument. Section 1(1) provides that "The provisions
of this part" shall apply to "common carriers" as defined, the word
"part" referring to §§ 1-27 inclusive. Section 19a, under which the
earlier order was issued, applies to "every common carrier subject
to the provisions of this part." Section 20 applies to "carriers,"
which is defined in subparagraph (8) as "common carrier[s] subject
to this chapter;" and § 6 applies to "every common carrier subject
to the provisions of this chapter." Hence, the Commission's
jurisdiction to issue orders under any of these sections is
determined by a decision that a company is a "common carrier" under
§ 1. The Government in effect argues, however, that a decision as
to jurisdiction also settles the merits, that facts adequate to
support a specific valuation order under § 19a are also adequate to
support an order under §§ 6 and 20. But this is the very conclusion
which this Court necessarily rejected in
Champlin I.
In
Page 341 U. S. 296
that case, it was Champlin which argued that an interpretation
encompassing it within § 1 would convert a private pipeline into a
public utility and require it to become a common carrier in fact.
But the Court stated that
"our conclusion rests on no such basis, and affords no such
implication . . . [The contention] is too premature and
hypothetical to warrant consideration. . . ."
329 U.S. at
329 U. S. 35. In
holding merely that Champlin could be required to submit
information as a "common carrier" under the Act, the Court plainly
indicated that the application of more rigorous sanctions would be
reserved for treatment as an independent statutory issue on a
proper record.
The reasons for this approach were suggested in
Valvoline
Oil Co. v. United States, 308 U. S. 141,
308 U. S. 146
(1939). Collection of information has a significance independent
from the imposition of regulations, whether or not such regulations
ever come forth. Valuation and cost data from companies not subject
to ratemaking may add to the statistical reliability of standards
imposed on those companies which are. "Publicity alone may give
effective remedy to abuses, if any there be." 308 U.S. at
308 U. S. 146.
Disclosure may alter the future course of a company otherwise
disposed to indulge in activities which the statute condemns.
Disclosure provides the basis for prompt action should a future
change in circumstances make full-scale regulation appropriate.
Finally, reports may bring to light new abuses, and thus provide
the groundwork for future statutory amendments. We assume that the
Congress which passed the Interstate Commerce Act was well aware of
these benefits. We conclude, as before, that the Congress did not
mean to eschew them by omitting a general provision empowering the
Commission to collect pertinent data from all interstate
pipelines.
The prior holding, therefore, supports that part of the
Commission's order involving § 20 of the Act. The requirement
Page 341 U. S. 297
of annual and special reports cannot be differentiated from a
request for maps, charts and valuation data. The requirement that
Champlin maintain a uniform system of accounts is somewhat more
burdensome, but we think its independent value as a measuring rod
for companies fully regulated under the Act is clearly sufficient
to justify the Commission's requesting so much as is pertinent.
At the same time, we find it hard to conclude, despite the
generality of the statutory terms used, that Congress intended to
apply the sanctions of § 6 -- imposing the duty of serving the
public at regulated rates -- on all private pipelines merely
because they cross state lines. The statute cannot be divorced from
the circumstances existing at the time it was passed, and from the
evil which Congress sought to correct and prevent. The
circumstances and the evil are well known. Pipelines were few in
number and heavily concentrated under the control of one company,
Standard Oil. That company, through the ownership of subsidiaries
and affiliates, 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.
. . . Availing itself of its monopoly of the means of
transportation, [it] refused through its subordinates to carry any
oil unless the same was sold to it or to them . . . on terms more
or less dictated by itself."
Pipe Line Cases, supra, at
234 U. S. 559.
Small independent producers -- who lacked the resources to
construct their own lines or whose output was so small that a
pipeline built to carry that output alone would be economically
unfeasible -- were in a desperate competitive position. There is
little doubt, from the legislative history, that the Act was passed
to eliminate the competitive advantage which existing or future
integrated companies might possess from exclusive ownership of a
pipeline.
Page 341 U. S. 298
This evil could not have been reached by bringing within the
coverage of the Act only those pipelines who were common carriers
for hire in the common law sense. Attempts so to limit the Act's
scope were made during the course of congressional debates. Senator
Lodge, sponsor of the principal amendment, rendered the obvious
answer that such an alteration would "absolutely destroy [the
proposal] . . . so far as its effectiveness is concerned." 40
Cong.Rec. 7000 (1906). Hence, the bill as finally enacted was
clearly intended
"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."
Pipe Line Cases, supra, at
334 U. S. 560.
And see Valvoline Oil Co. v. United States, supra. We may
also assume for purposes of argument -- no such facts ever having
been before this Court -- that the generality of the term "all
pipelines" was meant to impose full regulation on integrated
producer pipelines who exploit a competitive advantage simply by
refusing to deal with independent producers having no comparably
cheap method of reaching consuming markets. But it would be strange
to suppose that Congress, in adopting a term broad enough to cover
all competitive imbalances which might arise, intended that the
Commission should make common carriers for hire out of private
pipelines whose services were unused, unsought after, and unneeded
by independent producers, and whose presence fosters competition in
markets heavily blanketed by large "majors." Such a step would at
best, be pointless; it might well subvert the chief purpose of the
Act.
Yet, on the record before us, this is precisely what the
Commission is attempting to do. Unlike the crude oil gathering
lines of Valvoline, which carried the products of over 3,800
independent owners and operators, Champlin's
Page 341 U. S. 299
refined products line carries only its own. [
Footnote 5] The Government concedes that the order
under § 6 carries a necessary implication that Champlin may now be
forced to devote its pipeline, at least partially, to public use.
Nevertheless, the Commission has not only failed to disclose
circumstances which the Act was passed to correct, but has either
assumed or made findings to the contrary. In addition to findings
previously referred to, the Commission stated as follows:
"Only about 1.98 percent of the total gasoline consumed in
[Champlin's marketing] area is moved through the pipeline and sold
from respondent's terminal storage facilities. . . . The total
capacity of the common carrier lines into the Nebraska market is
about 13 times that of the Champlin line and about 10 times that of
the latter into the Iowa market. The common carrier pipeline
capacity available to refineries in Oklahoma and Kansas aggregates
172,800 barrels a day [in contrast to Champlin's capacity of 9,800
barrels], and respondent's pipeline is the smallest
Page 341 U. S. 300
of any common carrier or private pipeline operating in this
territory. Apparently
common carrier pipeline transportation is
available to any small refiner in this area desiring such
transportation."
"
* * * *"
"So far as appears, no other pipeline company has threatened to
force . . . a connection [with Champlin's], and because of the
ample common carrier pipeline facilities available, as revealed
by respondent, no refinery would be likely to interest itself in
such a connection."
274 ICC 412-413, 415 (1949). (Emphasis supplied.) The court
below, in its Findings of Fact, concluded that
"Champlin does not have a monopoly or any power to establish a
monopoly either in the transportation of petroleum products into
the trade territory or in the sale of petroleum products
therein."
95 F. Supp. 170 (1950). It further found that
"Champlin . . . is a small company in comparison with companies
with which it competes in the area reached by its pipeline. . . .
Champlin's acts create competition."
Ibid. See also Chairman Splawn, dissenting
from the Commission report. 274 ICC 416. [
Footnote 6] The Government seeks to rebuild its case by
pointing to small refiners who are closer to Champlin's pipeline
than to any other, and by stressing the expense of building long
connecting lines. But there is no evidence that any of these
refiners wish to market
Page 341 U. S. 301
outside their immediate area. And, in any event, it is not the
function of this Court to rescue the Commission by making findings
de novo which the Commission itself was unable or
unwilling to make. We hold that, on this record, the Commission's
order, insofar as it concerns § 6, goes beyond what Congress
contemplated when it passed the Act.
The judgment below will be modified by striking out those
portions setting aside the Commission's order in Cause No. 29912,
Champlin Refining Company Accounts and Reports, and, as
modified, it is affirmed.
So ordered.
MR. JUSTICE FRANKFURTER, while joining the Court's opinion,
would overrule the earlier
Champlin decision,
329 U. S.
29, on the ground set forth in the dissent in that
case.
[
Footnote 1]
49 U.S.C. § 1:
"(1)
Carriers subject to regulation."
"The provisions of this chapter shall apply to common carriers
engaged in --"
"
* * * *"
"(b) The transportation of oil or other commodity, except water
and except natural or artificial gas, by pipeline. . . ."
"
* * * *"
"(3) . . . (a) The term 'common carrier' as used in this chapter
shall include all pipeline companies. . . ."
[
Footnote 2]
49 U.S.C. § 19a:
"(a)
Physical valuation of property of carriers;
classification and inventory."
"The Commission shall . . . investigate, ascertain, and report
the value of all the property owned or used by every common carrier
subject to the provisions of this chapter. . . ."
"
* * * *"
"(e) . . . Every common carrier subject to the provisions of
this chapter shall furnish to the commission or its agents from
time to time and as the commission may require maps, profiles,
contracts, reports of engineers, and any other documents. . .
."
[
Footnote 3]
49 U.S.C. § 20:
"(1)
Reports from carriers and lessors."
"The Commission is authorized to require annual, periodical, or
special reports from carriers. . . ."
"
* * * *"
"(3)
Uniform system of accounts."
"The Commission may, in its discretion, for the purpose of
enabling it the better to carry out the purposes of this chapter,
prescribe a uniform system of accounts applicable to any class of
carriers subject thereto. . . ."
"(4)
Depreciation charges."
"The Commission shall . . . prescribe for carriers the classes
of property for which depreciation charges may properly be included
under operating expenses, and the rate or rates of depreciation
which shall be charged. . . ."
"
* * * *"
"(8) . . . the term 'carrier' means a common carrier subject to
this chapter. . . ."
[
Footnote 4]
49 U.S.C. § 6:
"(1)
Schedule of rates, fares, and charges; filing and
posting."
"Every common carrier subject to the provisions of this chapter
shall file with the commission . . . and print and keep open to
public inspection schedules showing all the rates, fares, and
charges for transportation. . . ."
Section 1(5) of the Act provides that all charges "shall be just
and reasonable." 49 U.S.C. § 1(5).
[
Footnote 5]
Champlin is sole owner of the stock of the Cimarron Valley Pipe
Line Company, an intrastate crude oil gathering system which
supplies oil from both its own and others' wells to the Champlin
refinery. However, the Commission, both in this case and in
Champlin I, gave no consideration, either in the hearings
or the orders, to Champlin's gathering facilities.
In any event, it would seem that Champlin's exclusive ownership
of the refined products line would be of no concern to independent
crude oil producers unless the following assumptions were true: (a)
that independent refiners were shut out of gasoline markets which
they would otherwise enter; (b) that this reduced their output
below the capacity of their refineries; (c) that this decreased
their demand for crude oil, thus reducing their competition with
Champlin in the purchase of crude, and thus depressing the price
which crude oil producers could get. As to the first, and crucial,
assumption, the Commission found precisely to the contrary.
See text,
infra.
[
Footnote 6]
". . . [T]he evidence is clear that there has been, and is, no
holding out by Champlin of a common carrier service either directly
or indirectly. None of the products moved through the line has ever
been purchased from any other interest. Moreover, the evidence
shows that the products transported through Champlin's pipeline
constitutes an inconsequential part of the total volume of products
that moves by pipeline to the consuming territory served by
Champlin from its storage facilities."
"Requiring Champlin to comply with our valuation orders and the
requirements of section 20 of the act . . . is one thing, but to
require it to file tariffs, and thereby obligate itself to
transport oil products of others in common carrier service, to the
exclusion of its own, is something entirely different."
"
* * * *"
"The purpose of the amendment in 1906 was to protect small
independent producers from monopoly power. This report construes
that amendment so as to convert into a common carrier the pipeline
wholly owned and completely utilized by a relatively small
independent company, though the company is wholly dependent upon
such facility . . . in the conduct of its refining business.
This ultra-literal construction regardless of differing
conditions and circumstances might well have the effect of
destroying small independent companies, instead of affording them
the protection intended by the amendment."
(Emphasis supplied.)
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE REED and MR. JUSTICE
BURTON concur, concurring in part and dissenting in part.
The term "common carrier" has but one meaning in the Act -- the
meaning given it by § 1. That definition was held in
Champlin Refining Co. v.
United States, 329
Page 341 U. S. 302
U.S. 29, sufficiently broad to include appellee. Section 19a was
involved there, and § 6 is involved here. That may make a
constitutional difference; but there can be none so far as the
statute is concerned. Since § 6, like § 19a, can reach appellee
only through § 1, if § 1 is broad enough for the one section, it is
broad enough for the other. As the Court in its several decisions
has not been consistent in its interpretation of the scope of the
Act as applied to private pipelines, I feel free to follow the
precedent of the
Pipe Line Cases, 234 U.
S. 548,
234 U. S.
561-562, and the view expressed in the dissent in
Champlin Refining Co. v. United States, 329 U. S.
29, that pipelines carrying only the commodities of
their owners from the owners' refineries to the owners' storage
tanks for marketing have not been made by Congress subject to the
Act. Consequently, I agree that § 1 is not broad enough to bring
appellee under the regulatory power of the Interstate Commerce
Commission. Therefore, neither § 6 nor § 20 applies.
MR. JUSTICE BLACK, dissenting.
From whatever angle this case is approached, it seems to me that
the holding of the Court is wrong. The decision rides roughshod
over clear statutory language making the Hepburn Act [
Footnote 2/1] applicable to interstate
oil-carrying pipelines, and makes impossible enforcement of the Act
as Congress intended. The decision undercuts and I think overrules
several prior cases without mentioning
Page 341 U. S. 303
this fact. And this appellant, Champlin, is even given a second
trial and victorious relitigation of the same issues we had
previously determined against it. Finally, the opinion suggests to
me that the Court accepts what I deem to be a frivolous
constitutional challenge to the Act, namely that Congress is
without power to force oil-carrying interstate pipelines to serve
as common carriers for hire.
I
The Court's holding that Champlin must comply with § 20 of the
Hepburn Act, but need not comply with § 6, cannot be reconciled
with clear language in those sections or with our previous
decisions construing the same language. Section 20 authorizes the
Interstate Commerce Commission to require that "all common carriers
subject to the provisions of this Act" [
Footnote 2/2] file, among other things, certain annual
reports; § 6 commands that "Every common carrier subject to the
provisions of this Act" [
Footnote
2/3] shall file schedules of rates with the Commission. I do
not understand why it should be necessary to labor the obvious --
this language requires Champlin (if it is a "common carrier subject
to the . . . Act") to comply with § 6 if it is required to comply
with § 20, or to comply with § 20 if it is required to comply with
§ 6. The Court holds that Champlin is a "common carrier subject to"
the Act, and accordingly sustains the Commission's order to file
reports under § 20. Paradoxically, however, it then proceeds to
hold that the same Champlin, though "subject to" the Act, need not
comply with § 6. How the Court
Page 341 U. S. 304
gives the identical language in the two sections such different
meanings is left a mystery. [
Footnote
2/4]
The Court may be saying that § 6 is something
sui
generis, that no pipeline company need comply with that
section unless it is something more than a "common carrier subject
to the . . . Act." [
Footnote 2/5]
While the meaning of this "something more" is not made clear, the
Court, in overturning the Commission order, does suggest in passing
that it might possibly sustain an order requiring Champlin to
comply with § 6 upon Commission findings that the company
exploited
"a competitive advantage simply by refusing to deal with
independent producers having no comparably cheap method of reaching
consuming markets,"
or that Champlin enjoyed a "monopoly" position in its area.
Certainly nothing in the Hepburn Act should encourage such judicial
creativeness, for § 6 applies to "Every common carrier subject to
the . . . Act" in language which does not logically admit of
limiting the section's coverage to carriers that have refused "to
deal with independent producers" or achieved "monopoly" status.
That § 6 would or could be thus restricted was not hinted at in the
Pipe Line Cases, 234 U. S. 548
(where this section was involved), nor in
Valvoline Oil Co. v.
United States, 308 U. S. 141,
[
Footnote 2/6] nor in our decision
in the first
Champlin case,
Champlin
Rfg. Co. v. United States,
Page 341 U. S. 305
329 U. S. 29.
[
Footnote 2/7] It should be noted
that the dissenting justices in
Champlin I thought that an
additional "something" was necessary before the Hepburn Act was
applicable; they believed that none of the Act's provisions should
apply to pipeline companies unless they were "common carriers in
substance." But neither those justices nor anyone else, so far as I
know, have ever before suggested that the Court can pick and choose
sections into which additional requirements can be imported. This
possibility remained for today's majority to discover, 46 years
after passage of the Hepburn Act. [
Footnote 2/8]
II
Far more important than the judicial exemption of Champlin from
filing papers under § 6, however, is the Court's holding that
pipeline companies engaged in interstate
Page 341 U. S. 306
transportation of their own petroleum products need not act as
public carriers for hire unless they have already voluntarily
become "something more" than interstate oil-carrying pipelines. The
proper answer to this basic question in the case turns on § 1 of
the Hepburn Act:
"[T]his Act shall apply to any corporation or any person or
persons engaged in the transportation of oil or other commodity . .
. by means of pipelines . . . who shall be considered and held to
be common carriers within the meaning and purpose of this Act. . .
. [
Footnote 2/9]"
That Champlin is a common carrier within the literal language of
this provision is shown by the unchallenged findings of fact made
by the ICC: Champlin, a fully integrated company, produces,
refines, transports and markets petroleum products. Through a
wholly owned subsidiary, it also buys, gathers, and transports to
its refinery oil produced from the wells of others. [
Footnote 2/10] Its trunk pipeline extends
516 miles across five states from its refinery at Enid, Oklahoma,
to its terminal at Rock Rapids, Iowa. Although application of the
Act does not depend on a pipeline company's size, Champlin is by no
means a small company; rather, it occupies an important position in
the area it serves. [
Footnote
2/11] But for the Court's holding,
Page 341 U. S. 307
I should have thought that § 1 of the Act on the admitted facts
obviously required Champlin to serve as a common carrier for the
products of others.
That the Hepburn Act did convert Champlin into a public carrier
for hire is made even clearer by the legislative history. The
pipeline provision was sponsored in 1906 by Senator Henry Cabot
Lodge, of Massachusetts, who offered to amend a pending railroad
bill in a manner which would convert interstate oil-carrying
pipelines into common carriers subject to regulation by the ICC.
[
Footnote 2/12] The Lodge
Amendment reflected dissatisfaction with monopoly conditions in the
petroleum industry. Such conditions, it was thought, had been
brought about in the main through control of oil-carrying pipelines
by large integrated companies (especially the Standard Oil Company)
which were using their control to exclude independent producers and
refiners from this cheap transportation facility. [
Footnote 2/13] But the ensuing debate left no room
for
Page 341 U. S. 308
doubt that the purpose of the Amendment, as its language clearly
showed, was to deprive any oil company, not merely Standard,
[
Footnote 2/14] of power to
utilize pipeline control to crush competition. To this end, as is
shown by an
341
U.S. 290app|>Appendix following this opinion, the Amendment
was designed to make public or common carriers for hire out of
every private pipeline company transporting petroleum products in
interstate commerce. Senators who were opposed charged that the
passage of the Amendment would do exactly this against the will of
"private" carriers. Lodge and other proponents freely admitted it,
explaining that anything less would be ineffective. All
congressional efforts to narrow the Amendment to cover only
companies already acting like common carriers were defeated.
Page 341 U. S. 309
Therefore it is strange to say, as the Court does, that applying
the pipeline provisions so as to make Champlin a common carrier for
hire would "subvert the chief purpose of the Act." Stranger still
is the Court's unexplained apprehension that requiring all
interstate pipeline companies to serve as public carriers for hire
would somehow "foster" monopoly.
III
The Court, without mentioning it, necessarily overrules one or
more of our previous decisions construing the Hepburn Act. In the
Pipe Line Cases, supra, it was held that the Hepburn Act
converted into common carriers for hire all private pipeline
companies "engaged in the transportation of oil or other commodity"
across state lines, a decision which meant that all such companies
are by law required to offer their services to the public.
[
Footnote 2/15]
Page 341 U. S. 310
In the first
Champlin case,
supra, we
determined that this appellant was so "engaged." [
Footnote 2/16] Consequently, today's decision
allowing Champlin to refrain from filing tariffs under § 6
necessarily overrules either the
Pipe Line Cases or
Champlin I, or both. If they are to be overruled, the
Court should say so. I would not overrule either.
Nor do I understand how today's holding can be reconciled with
Valvoline Oil Co. v. United States, supra, where we held
that Valvoline was a "common carrier subject to" the Act. The
pattern of operations of Valvoline and Champlin are identical, with
two minor exceptions: (1) Valvoline's interstate pipelines
transported crude oil, while Champlin's trunk line transports
gasoline. This difference is immaterial; even assuming that
"gasoline" is not "oil" within the meaning of § 1, that section
makes the Act apply not merely to any pipeline company carrying
"oil," but to pipeline companies carrying any "other commodity."
(2) Valvoline chose to operate its gathering lines and purchase oil
from independent producers in its own corporate name, while
Champlin chooses to operate its gathering lines and purchase oil in
the name of a wholly owned subsidiary. The Court, however, had no
difficulty in the
Pipe Line Cases in treating as a single
unit the Standard Oil Company and its wholly owned or even partly
owned subsidiaries. [
Footnote
2/17]
It should be noted, moreover, that Valvoline unsuccessfully made
the same contention that the Court now
Page 341 U. S. 311
accepts in order to relieve Champlin from its statutory duties.
Thus, Valvoline attempted to avoid becoming a common carrier for
hire by claiming that the Act applied only to companies enjoying a
monopoly position in an area, a position not held by Valvoline
because public pipelines for hire adequately served the fields
where Valvoline bought its oil. [
Footnote 2/18] The ICC refused to accept Valvoline's
proposed interpretation of the Act, and we necessarily did the same
in affirming the Commission's order.
The Court nevertheless seeks to distinguish the
Valvoline case on the ground that Valvoline "carried the
products of over 3,800 independent owners and operators." The
quoted language correctly states a fact only if it is understood to
mean that Valvoline made purchases from 3,800 independents and then
carried the purchased oil in its pipeline. This fact, however,
certainly does not distinguish the two cases. Like Valvoline,
Champlin carries the "oil of others" all the way from the well to
the market area: over half of the oil and gasoline carried by
Champlin is originally purchased as crude oil from independent
producers in the field before transportation begins. [
Footnote 2/19] As noted above, Champlin
does make these purchases through a wholly owned subsidiary, rather
than in its own corporate name, but this fact is unimportant.
[
Footnote 2/20]
Page 341 U. S. 312
Since there is no substantial difference between the operations
of Champlin and Valvoline, and between the legal arguments made in
the two cases, I conclude that, verbalisms aside, the effect of
today's decision is to undermine the
Valvoline holding. In
this situation, I think
Valvoline should be expressly
overruled. Why, in fairness, should Valvoline and others similarly
situated be required to serve as common carriers for hire, while
Champlin is left free to conduct its pipelines as it chooses?
IV
In the first
Champlin case, we upheld findings of fact
made by the I.C.C., 49 Val.Rep.(I.C.C.) 463, 470, that appellant
was "engaged in the transportation" and was "a common carrier
subject to the provisions of" the Act. Since these questions were
"distinctly put in issue and directly determined," Champlin may not
dispute them in this second proceeding between the same parties
unless there is a departure from the principles most recently
announced in
United States v. Munsingwear, 340 U. S.
36,
Page 341 U. S. 313
340 U. S. 38.
Yet three concurring justices today appear to take the position
that Champlin is not "engaged in transportation," and is therefore
not a common carrier subject to the Act, a position which this
Court emphatically rejected in
Champlin I. I also believe
that the majority's position is unjustified under the
Munsingwear principle when the effect (as distinguished
from the language) of their decision is considered.
V
Why should the Court interpret the Hepburn Act in a way which
nullifies its purpose? I am forced by process of elimination to
consider whether the decision reflects either a hostility to the
policy of the Act or an unarticulated belief that it is
unconstitutional if enforced as written. Neither this Court nor any
other should strangle an Act because of judicial disagreement with
congressional policy. If destruction of the Act results from a
feeling that the Constitution forbids Congress to convert private
companies into public servants, I think that this view should be
announced here, as it was by a majority of the court below.
Pipeline companies, administrators of the law, the bench, the bar,
and the Congress are entitled to no less. Of course, the same
constitutional contention was expressly rejected in 1914 in the
Pipe Line Cases, supra: as to companies which, like
Champlin, built their lines after passage of the Act, Justice
Holmes, speaking for the Court, dismissed the challenge brusquely
with less than a sentence, stating merely that "there can be no
doubt that it [the pipeline provision] is valid." 234 U.S. at
234 U. S. 561.
Again, in 1922, the Court, relying on the
Pipe Line Cases,
supra, rejected a somewhat similar constitutional argument as
"futile to the point almost of being frivolous."
Pierce Oil
Corp. v. Phoenix Rfg. Co., 259 U. S. 125,
259 U. S. 128.
Surely a contention deemed "almost frivolous" twenty-nine years ago
should not now be reinvigorated by implication.
Page 341 U. S. 314
VI
No one can be sure that, under the Act as now rewritten by the
Court, the Commission can or should succeed in forcing any oil
company -- even those now complying with the Act -- to carry
gasoline or oil for others as a common carrier. Even without the
newly engrafted, Court-created hurdles, the pipeline provisions,
for one reason or another, have never been enforced as effectively
as might be desired. [
Footnote
2/21] Perhaps, therefore, no great harm will result from the
Court's polite but sure frustration of the Hepburn Act's purpose.
Some people in and familiar with the oil industry, however, believe
that this Act should be strengthened, not weakened. [
Footnote 2/22] Be that as it may, I deem
it my duty to vote to enforce the Act as Congress has passed
it.
I would reverse.
Page 341 U. S. 315
[
Footnote 2/1]
34 Stat. 584. The Hepburn Act was passed in 1906 as an amendment
to the Interstate Commerce Act of 1887, 24 Stat. 379, and may now
be found in 49 U.S.C. §§ 1-27. All quotations in the text follow
the original language of the Hepburn Act, this Court twice having
held that subsequent minor modifications changed neither the
purpose nor the meaning of the Act.
Valvoline Oil Co. v. United
States, 308 U. S. 141,
308 U. S.
145-146;
Champlin Rfg. Co. v. United States,
329 U. S. 29,
329 U. S. 32,
note 4.
[
Footnote 2/2]
34 Stat. 593, now 49 U.S.C. § 20, which provides that the ICC
may require reports "from carriers" and " . . . the term "carrier"
means a common carrier subject to this chapter. . . ."
[
Footnote 2/3]
34 Stat. 586, now 49 U.S.C. § 6: "Every common carrier subject
to the provisions of this chapter shall file. . . ."
[
Footnote 2/4]
The mystery is not lessened by the Court's use of the concept of
the "Commission's jurisdiction" in connection with tariffs. For the
duty of a common carrier to file tariffs is not dependent on any
"jurisdiction" or any order of the ICC. Section 6 unequivocally
commands that common carriers subject to the Act "shall file."
See 341
U.S. 290fn2/3|>note 3,
supra.
[
Footnote 2/5]
I am unable to find any support for this interesting theory in
the language or history of any part of the Act, or from any other
source.
But see Splawn, Commissioner, dissenting, 274
I.C.C. 416;
compare the opinion of Commissioners
Aitchison, Splawn, and Alldredge in the first Champlin case, 49
Val.Rep. (I.C.C.) 463.
[
Footnote 2/6]
See Part III,
infra.
[
Footnote 2/7]
The holding of the last two cited cases was that Valvoline and
Champlin had to comply with 49 U.S.C. § 19a(a) and (e). Section
19a, like § 6 and § 20, applies to "every common carrier subject to
the provisions of this chapter. . . ."
[
Footnote 2/8]
I do not think that the Court in
Champlin I reserved
"as an independent
statutory issue on a proper record"
(emphasis added) the question whether Champlin could be converted
into a public carrier for hire; rather, the question left open was
whether the Fifth Amendment barred converting Champlin into a
public carrier.
Of course, the Government argued in
Champlin I, as it
did in Valvoline, that the Act's provisions should be treated as
"separable" in passing on the
constitutional question
raised. But the Government has never intimated that the sections of
the Act as a matter of
statutory construction were
"separable." Even an assumption that the sections were separable,
however, would not justify the Court in exempting Champlin from § 6
unless it could find support for such an exemption in some
statutory language. The Court has pointed to no such exclusionary
language; I can find none. Moreover, as an Appendix to this
opinion,
infra p.
341 U. S. 315, shows, Senator Lodge intended to make
"the pipelines and the oil companies subject to all the provisions
of the bill" unless expressly excluded in a particular
provision.
[
Footnote 2/9]
34 Stat. 584, now 49 U.S.C. § 1:
"(1) . . . The provisions of this chapter shall apply to common
carriers engaged in -- . . . (b) [t]he transportation of oil or
other commodity . . . by pipeline. . . . (3) . . . (a) The term
'common carrier' as used in this chapter shall include all pipeline
companies. . . ."
See 341
U.S. 290fn2/1|>note 1,
supra.
[
Footnote 2/10]
Mr. A.G. E. Leverton, Comptroller of the Champlin Refining
Company testified:
"We have never produced more than approximately 45 percent of
the crude oil required by our refinery, and hence have always been
compelled to purchase on the open market more than half of our
crude oil requirements. . . ."
[
Footnote 2/11]
The total cost of Champlin's pipeline and appurtenant facilities
as of December 31, 1940, was $3,189,028.66. Champlin, according to
the ICC, owns: (1) Approximately 149 oil wells on 53 leases in
Oklahoma, 45 wells on 13 leases in Kansas, and 52 wells on 10
leases in Texas; (2) approximately 75,000 acres of undeveloped
leases; (3) the Enid refinery which processes approximately 4 1/2
million barrels of crude oil annually; (4) all the stock of the
Cimarron Valley Pipe Line Company which owns and operates 450 miles
of gathering lines in Oklahoma; (5) 723 tank cars; (6)
approximately 316 filling stations and 248 gasoline and oil bulk
plants; (7) the products pipeline involved in this case; (8) trucks
and other equipment used to promote the producing, purchasing and
refining of crude oil and the marketing of the products thereof. 49
Val.Rep. (I.C.C.) 463-464; 274 I.C.C. 410.
[
Footnote 2/12]
The "pipeline provision" was added to § 1 of the Hepburn Act,
and is the language quoted from § 1 in the text accompanying
341
U.S. 290fn2/9|>note 9,
supra. That provision is now
found in 49 U.S.C. § 1.
See 341
U.S. 290fn2/9|>note 9,
supra.
[
Footnote 2/13]
Immediately before Senator Lodge introduced his amendment,
President Theodore Roosevelt transmitted to the Congress a report
on the transportation of petroleum. 40 Cong.Rec. 6358. The report
pointed out the advantage possessed by Standard Oil as a result of
its control of pipelines. H.R.Doc. No. 100, 59th Cong., 1st Sess.
29, 36-37, 60-62, 398-400. For the background of monopolistic
practices in the petroleum industry at that time,
see
generally Beard, Regulation of Pipe Lines as Common Carriers
(1941), 10-27; 2 Sharfman, The Interstate Commerce Commission
(1931), 59, 96; Whitesel, Recent Federal Regulation of the
Petroleum Pipe Line as a Common Carrier, 32 Cornell L.Q. 337, 341.
For history of Standard Oil practices,
see Standard Oil Co. v.
United States, 221 U. S. 1;
United States v. Standard Oil Co., 173 F. 177; Tarbell,
The History of The Standard Oil Company (1925).
Control of pipeline transportation is still important today.
See, e.g., the statement of Alfred M. Landon:
"Very little crude oil is moved in any other way than by
pipeline. There is only a small amount moved by intrastate
shipments. The independent producer therefore finds himself at the
mercy of his competitor in the business of producing oil when that
competitor controls practically one hundred percent of the
transportation facilities, because it becomes simply a question of
bookkeeping as to the end of the business in which this big
monopoly shows its profit. It can pay less for the oil and make its
profit from the transportation. The independent refiner is choked
also by this same means -- the control of the transportation
facilities."
Hearings before House Committee on Interstate and Foreign
Commerce on H.R. 16695, 71st Cong., 3d Sess. 59.
[
Footnote 2/14]
As to the danger involved in interpreting this Act as aimed at a
single corporation,
see McFarland v. American Sugar Refining
Co., 241 U. S. 79.
[
Footnote 2/15]
Justice Holmes wrote for the Court:
"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 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."
234 U.S. at
234 U. S.
559-560.
Both the Interstate Commerce Commission and the Commerce Court
had construed the statute as requiring all interstate, oil-carrying
pipelines to serve as common carriers for hire. 24 I.C.C. 1 (1912);
204 F. 798 (1913). It is true that the Commerce Court held the
Hepburn Act unconstitutional as a taking of property without due
process of law, one judge dissenting. But, on appeal,
Pipeline
Cases, 234 U. S. 548,
this Court reversed, holding the Act constitutional: as to those
pipelines in existence before passage of the Act, one ground
assigned by the Court was that they were already common carriers in
substance. As to pipelines built subsequent to the passage of the
Act,
see 341 U. S.
infra.
[
Footnote 2/16]
329 U.S. at
329 U. S. 34. In
the
Pipe Line Cases, supra, the Uncle Sam Oil Company,
which operated its business on the border between Oklahoma and
Kansas, was held not to be so "engaged," because it was "simply
drawing oil from its own wells across a state line to its own
refinery, for its own use, and that [was] all. . . ." 234 U.S. at
234 U. S. 562.
There is no
Uncle Sam problem in this case, since a
majority of the Court today reaffirms the former holding that
Champlin is "engaged in transportation."
[
Footnote 2/17]
But cf. United States v. Elgin, J. & E. R. Co.,
298 U. S. 492;
United States v. South Buffalo R. Co., 333 U.
S. 771.
[
Footnote 2/18]
As to the factual similarity between Champlin's and Valvoline's
domination (or lack of domination) in the fields served,
compare 274 ICC 413 ("[a]pparently, common carrier
pipeline transportation is available to any small refiner in
[Champlin's] area desiring such transportation")
with 47
Val.Rep. (I.C.C.) 534, 535 ("[a]t least one common carrier pipeline
company serves each of the fields reached by the Valvoline").
[
Footnote 2/19]
See 341
U.S. 290fn2/10|>note 10,
supra. Whether Champlin
buys from more or less than 3,800 independent producers does not
appear in the record. But the exact number cannot have legal
significance here.
See Valvoline Oil Co. v. United States,
308 U. S. 141,
308 U. S. 147.
[
Footnote 2/20]
Even if Champlin produced all the oil it transported, the Act
would require its regulation because of the effect of exclusive
pipeline ownership on Champlin's price policy at the other end of
the pipeline. For one major purpose of the Act was to insure
competition in the petroleum industry by regulating pipeline
transportation so that the independent refiner, the jobber, and the
consumer would not be charged exorbitant prices by the integrated
companies.
See 40 Cong.Rec. 6365, 6366; Note, Public
Control of Petroleum Pipe Lines, 51 Yale L.J. 1338, 1347-1348. It
is noteworthy that the price of Champlin's gasoline was 1/8� per
gallon higher at Superior, Kansas (a point not served by any other
common carrier pipeline), than it was at Rock Rapids, Iowa (a point
served by a common carrier line, hence in a competitive market);
Rock Rapids is 260 miles further from the Enid refinery than is
Superior. The effect of such control was pointed out long ago by
this Court in
Standard Oil Co. v. United States,
221 U. S. 1,
221 U. S. 77, as
follows:
"As substantial power over the crude product was the inevitable
result of the absolute control which existed over the refined
product, the monopolization of the one carried with it the power to
control the other. . . ."
[
Footnote 2/21]
"The major oil companies have their greatest control in the
transportation of crude oil. . . . The control of transportation
today by the majors appears in many respects to be just as complete
and effective as was the case of the Standard Oil Trust."
Report of the Temporary National Economic Committee, 76th Cong.,
3d Sess., Monograph 39 (1941), p. 28. This report contains an
excellent discussion of transportation problems in the petroleum
industry.
Id. at 19-28.
And see Kemnitzer,
Rebirth of Monopoly (1938), 78-95; Whitesel, Recent Federal
Regulation of the Petroleum Pipe Line as a Common Carrier, 32
Cornell L.Q. 337, 355-369.
[
Footnote 2/22]
See, e.g., the statement of Alfred M. Landon:
"The crushing strength of the old Standard Oil Co. lay in the
fact that, of its thirty-odd companies, some were producers only,
some were transporters only, some were refiners only, and some were
marketers only."
"But the masterminds that controlled the old Standard Oil Co.
coordinated these thirty and odd companies into one vast company --
a great single, integrated, coordinated 'unit' that, as a corporate
entity, did all of these things (producing, transporting, refining,
and marketing) -- and all of them within the corporate
inclusiveness of 'one' company."
"Therein rested the terrific, the overpowering strength of the
old Standard Oil Co."
"Today, from a corporate standpoint, we have the 'equivalent,'
many times over, of the old Standard Oil Co. . . ."
"
* * * *"
"It is inevitable that the only escape from monopolistic
domination in the oil industry -- and it is being rapidly
accomplished through mergers and integration -- is to clearly,
definitely, and effectively segregate, first, the entire pipeline
transportation system of the oil industry from the rest of the
industry. The first effect of this segregation would be the
substitution of competition in the transportation of crude oil for
the present practice which, in each individual case, is, to all
practical purposes, a monopoly."
Hearings before House Committee on Interstate and Foreign
Commerce on H.R. 16695, 71st Cong., 3d Sess. 60, 61. For views
against the proposed strengthening of the Hepburn Act,
see
House Report on Pipe Lines, 72d Cong., 2d Sess. (1933), especially
Special Counsel Splawn's conclusions, p. lxxviii.
See also
Kemnitzer, Rebirth of Monopoly (1938), 87-90; F. R. Black, Oil Pipe
Line Divorcement by Litigation and Legislation, 25 Cornell L.Q.
510.
|
341
U.S. 290app|
APPENDIX TO OPINION OF MR. JUSTICE BLACK
On May 4, 1906, President Theodore Roosevelt transmitted to the
Congress a report describing and condemning various monopolistic
practices in the petroleum industry. 40 Cong.Rec. 6358. Senator
Lodge of Massachusetts, on the same day, introduced an amendment to
§ 1 of the Hepburn Act making pipeline companies engaged in the
interstate transportation of oil and other commodities common
carriers:
"[That the provisions of this act shall apply to] Any
corporation or any person or persons engaged in the transportation
of oil or other commodity, except natural gas or water for
municipal purposes, 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. . . ."
Id. at 6361.
Page 341 U. S. 316
Senator Foraker of Ohio immediately objected to the broad scope
of the Lodge proposal:
"I do not want to make any opposition to the Senator's
amendment, but it occurs to me that the amendment ought to be
further amended, so as to provide that it shall apply only to
pipelines operated for the public. I do not understand how you
could compel a man who has a private pipeline of his own to become
a common carrier. . . . I think such a limitation ought to be put
in the Senator's amendment by an amendment to the amendment that it
shall apply to all pipelines that are carrying for the public, and
not to private lines that an individual or a single corporation may
have laid down and put into operation for its own benefit."
Id. at 6361.
Senator Nelson, in reply, stated that Foraker's suggestion would
"practically nullify the provision, because every one of these
pipelines cay say "we refuse to do business for the public."
Practically, the [Lodge] amendment would be of no use at all."
Id. at 6365. And Senator Lodge added:
"[T]he amendment suggested by [Senator Foraker] to the effect
that no pipeline, unless it carries for the public, shall come
under this rule, will, as [Senator Nelson] says, absolutely destroy
the value of my amendment."
Id. at 6365.
During the course of the debate, an attempt was made to make the
Lodge amendment applicable only to carriers "for the public" or to
"transportation for hire" or "for compensation," but it was
unsuccessful.
Id. at 7000. Senator Lodge again stated that
such an amendment would "absolutely destroy" his proposal "so far
as its effectiveness is concerned."
Id. at 7000.
There can be no doubt but that the proponents knew and stated
their purpose. Senator Lodge declared:
"[T]he purpose of this amendment is to bring the transportation
of oil and other commodities within the interstate
Page 341 U. S. 317
commerce law. Oil is one of the greatest articles of interstate
commerce carried in this country, and it is now absolutely outside
and beyond any Government regulation whatsoever."
Id. at 6365. Later he added: "All pipelines owned by
any company within the United States . . . are made common
carriers."
Id. at 7001. Senator Clay, speaking about the
pipeline provision, observed:
"This bill makes every corporation engaged in the transmission
of oil a common carrier. Every private corporation transmitting its
own oil . . . is made a common carrier by the [Lodge] amendment. .
. ."
Id. at 7009. And Senator Culberson said:
"Nothing is left to the courts for construction, but the statute
itself declares that any corporation, or any person or persons,
engaged in transporting oil by pipelines -- of course, as
interstate commerce -- are common carriers, and are declared to be
such in this act of Congress, subject to the authority of this act.
. . ."
Id. at 7005. Senator Bailey, in the final debate on the
measure, described the Lodge proposal as the "
pipeline
amendment,' by which we mean the amendment that makes the pipelines
common carriers." Id. at 9647.
The "commodities clause" of the Hepburn Act was designed to
prevent railroads from owning businesses whose shipments they
carried. When that clause was first considered in the Senate, it
applied to "common carriers subject to" the Act. Some senators
realized that the "commodities clause" -- read together with the
Lodge Amendment making every pipeline company subject to the Act --
would force a divorcement of pipelines from refineries. To avoid
this, they again suggested that the Lodge proposal be amended so as
to apply only to pipelines operating for the public. Senator Lodge
said:
"What I want to suggest to the Senator is that this [original
Lodge] amendment makes the pipelines and
Page 341 U. S. 318
the oil companies subject to all the provisions of the bill. If
the Senator thinks there is an injustice, the place to remedy it is
on page 5 at that amendment [the commodities clause], and not at
this one [the Lodge amendment]."
Id. at 7009. Accordingly, the "commodities clause"
finally passed by Congress referred specifically to railroads. 34
Stat. 585.