In determining whether a corporation is or is not a common
carrier, the important thing is what it actually does, and not what
its charter says it may do.
A corporation authorized by its charter to carry passengers and
goods by automobiles, taxicabs, and other vehicles, but not to
exercise any of the powers of a public service corporation, and
which does such business, including the carrying of passengers to
and from railroad terminals and hotels under contracts therewith,
and also does a garage business with individuals,
held, in
this case, to be a common carrier within the meaning of the
District of Columbia Public Utility Act of 1913, and subject to the
jurisdiction of the Public Utilities Commission, as to the terminal
and hotel business, but not as to the garage business.
Such a corporation is bound under the Public Utilities Act to
furnish information properly required by the Commission in regard
to its terminal and hotel business, but not as to its private
garage business, and an order of the Commission requiring
information as to all classes of business should be so modified and
limited as not to include an inquiry into such garage business.
In this case,
held that the omission from a general
order of the Commission of concerns doing such a small volume of
business as, in the opinion of the Commission, did not bring them
within the meaning of the Act did not amount to such a preference
as to deny those affected by the order the equal protection of the
law.
43 App.D.C. 120 modified.
The facts, which involve the construction and application of the
provisions of the Act of March 4, 1913, creating
Page 241 U. S. 253
the Public Utilities Commission of the District of Columbia, are
stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit to restrain the Public Utilities Commission of
the District of Columbia from exercising jurisdiction over the
plaintiff. The Commission was created and its powers established by
a section (§ 8) of an appropriation act, divided into numbered
paragraphs. Act of March 4, 1913, c. 150, § 8, 37 Stat. 938, 974.
By paragraph.2 of the section, "every public utility is hereby
required to obey the lawful orders of the Commission," and by
paragraph 1, "public utility" embraces every common carrier, which
phrase in turn is declared to include
"express companies and every corporation . . . controlling or
managing any agency or agencies for public use for the conveyance
of persons or property within the District of Columbia for
hire."
Steam railroads, some other companies, and the Washington
Terminal Company, are declared not to be within the words. The main
question is whether the plaintiff is a common carrier under the
definition in the act. The bill was dismissed by the supreme court,
and the decree was affirmed by the court of appeals. 43 App.D.C.
120.
The facts are agreed. The plaintiff is a Virginia corporation,
authorized by its charter, with copious verbiage, to build, buy,
sell, let, and operate automobiles, taxicabs, and other vehicles,
and to carry passengers and goods by such vehicles, but not to
exercise any of the powers of a public service corporation. It does
business in the District,
Page 241 U. S. 254
and the important thing is what it does, not what its charter
says. The first item, amounting to about thirty-five hundredths of
the whole, is done under a lease for years from the Washington
Terminal Company, the owner of the Union Railroad Station in
Washington, which we have mentioned as excluded from the definition
of common carriers. By this lease, the plaintiff has the exclusive
right to solicit livery and taxicab business from all persons
passing to or from trains in the Union Station, and agrees in its
turn to provide a service sufficient in the judgment of the
Terminal Company to accommodate persons using the station, and is
to pay over a certain percentage of the gross receipts. It may be
assumed that a person taking a taxicab at the station would control
the whole vehicle both as to contents, direction, and time of use,
although not, so far as indicated, in such a sense as to make the
driver of the machine his servant, according to familiar
distinctions. The last facts, however, appear to be immaterial, and
in no degree to cast doubt upon the plaintiff's taxicabs, when
employed as above stated, being a public utility by ancient usage
and understanding (
Munn v. Illinois, 94 U. S.
113,
94 U. S. 125),
as well as common carriers by the manifest meaning of the act. The
plaintiff is "an agency for public use for the conveyance of
persons," etc., and nonetheless that it only conveys one group of
customers in one vehicle. The exception of the Terminal Company
from the definition of common carriers does not matter. The
plaintiff is not its servant, and does not do business in its name
or on its behalf. It simply hires special privileges and a part of
the station for business of its own.
The next item of the plaintiff's business, constituting about a
quarter, is under contracts with hotels by which it agrees to
furnish enough taxicabs and automobiles within certain hours
reasonably to meet the needs of the hotel, receiving the exclusive
right to solicit in and about
Page 241 U. S. 255
the hotel, but limiting its service to guests of the hotel. We
do not perceive that this limitation removes the public character
of the service, or takes it out of the definition in the act. No
carrier serves all the public. His customers are limited by place,
requirements, ability to pay, and other facts. But the public
generally is free to go to hotels if it can afford to, as it is
free to travel by rail, and through the hotel door to call on the
plaintiff for a taxicab. We should hesitate to believe that either
its contract or its public duty allowed it arbitrarily to refuse to
carry a guest upon demand. We certainly may assume that, in its own
interest, it does not attempt to do so. The service affects so
considerable a fraction of the public that it is public in the same
sense in which any other may be called so.
German Alliance Ins.
Co. v. Lewis, 233 U. S. 389. The
public does not mean everybody all the time.
See Peck v.
Tribune Co., 214 U. S. 185,
214 U. S.
190.
The rest of the plaintiff's business, amounting to four tenths,
consists mainly in furnishing automobiles from its central garage
on orders, generally by telephone. It asserts the right to refuse
the service, and no doubt would do so if the pay was uncertain, but
it advertises extensively, and, we must assume, generally accepts
any seemingly solvent customer. Still, the bargains are individual,
and however much they may tend towards uniformity in price,
probably have not quite the mechanical fixity of charges that
attends the use of taxicabs from the station and hotels. There is
no contract with a third person to serve the public generally. The
question whether, as to this part of its business, it is an agency
for public use within the meaning of the statute is more difficult.
Whether it is or not, the jurisdiction of the Commission is
established by what we have said, and it would not be necessary to
decide the question if the bill, in addition to an injunction
against taking jurisdiction, did not pray that order No. 44 of the
Commission be declared void. That order
Page 241 U. S. 256
after declaring that the plaintiff was engaged in the business
of a common carrier within the meaning of the act, and so was
within the jurisdiction of the Commission, required the plaintiff
to furnish the information called for in a circular letter of April
12, 1913. What this information was does not appear with technical
precision, but we assume that it was in substance similar to a
later requirement of a schedule showing all rates and charges in
force for any service performed by the plaintiff within the
District, or any service in connection therewith. If we are right,
this demand was too broad unless the business from the garage also
was within the act. There is no such connection between the charges
for this last and the others as there was between the facts
required and the business controlled in
Int. Comm. Com. v.
Goodrich Transit Co., 224 U. S. 194,
224 U. S. 211.
Although I have not been able to free my mind from doubt, the Court
is of opinion that this part of the business is not to be regarded
as a public utility. It is true that all business, and, for the
matter of that, every life in all its details, has a public aspect,
some bearing upon the welfare of the community in which it is
passed. But, however it may have been in earlier days as to the
common callings, it is assumed in our time that an invitation to
the public to buy does not necessarily entail an obligation to
sell. It is assumed that an ordinary shopkeeper may refuse his
wares arbitrarily to a customer whom he dislikes, and although that
consideration is not conclusive,
German Alliance Ins. Co. v.
Kansas, 233 U. S. 389,
233 U. S. 407,
it is assumed that such a calling is not public as the word is
used. In the absence of clear language to the contrary, it would be
assumed that an ordinary livery stable stood on the same footing as
a common shop, and there seems to be no difference between the
plaintiff's service from its garage and that of a livery stable. It
follows that the plaintiff is not bound to give information as to
its garage rates.
Page 241 U. S. 257
Complaint is made that jurisdiction has not been assumed over
some other concerns that stand on the same footing as the
plaintiff. But there can be no pretense that the act is a disguised
attempt to create preferences, or that the principle of
Yick Wo
v. Hopkins, 118 U. S. 356,
applies. The ground alleged by the Commission is that it did not
consider that the omitted concerns did business sufficiently large
in volume to come within the meaning of the act. There is nothing
to impeach the good faith of the Commission, or to give the
plaintiff just cause for complaint. The decree, so far as it
asserts the jurisdiction of the Commission, is affirmed, but it
must be modified so to restrain an inquiry into the rates charged
by the plaintiff at its garage, or the exercise of jurisdiction
over the same.
Decree modified as above set forth.