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152 C. C. A. 275), and plaintiff appeals. Re-[sail, or other boats, ships, vessels or other propversed.

Mr. Assistant Attorney General Frierson, for the United States.

erty to be used in any lawful business, trade, commerce, or navigation upon the ocean, or any seas, sounds, lakes, rivers, canals, or other waterways, and for the carriage, transportation,

Mr. Henry B. Closson, of New York City, or storing or lading, freight, mails, property, or for respondent.

* Mr. Justice BRANDEIS delivered the opinion of the Court.

The Hours of Service Act (Act March 4, 1907, c. 2939, 34 Stat. 1415 [Comp. St. §§ 8677, 8678])1 prohibits any common carrier by railroad en*gaged in interstate commerce from requiring or permitting an employé to remain on duty for a longer period than 16 consecutive hours. For alleged violation of this provision, proceedings were brought against the Brooklyn Eastern District Terminal in the District Court of the United States for the Eastern District of New York. The defendant contended that it was not a

passengers thereon."

In its certificate of incorporation, the corporate powers and purposes of the defendant are stated as follows:

"The purposes for which it is formed are to build for its own use, equip, furnish, fit, purchase, charter, navigate, and own steam, sail, and other boats, ships, vessels, and other property to be used in the business of carrying, transYork Harbor and the waters adjacent thereto porting, storing, and lading merchandise in New and connected therewith and the territory bordering thereon."

2. The Terminal operates a union freight station at Brooklyn under individual concommon carrier; that it was not engaged in tracts with ten interstate railroads and several steamship companies. From the railinterstate commerce by railroad; and that its employés were not "connected with the roads it receives both carload and less than movement of any train." Upon facts which carload freight and transports the same from were agreed the trial court entered judgment the cars containing such freight are hauled their termini to its Brooklyn docks. There, for the government. The Circuit Court of Appeals reversed the judgment on the ground from the car floats by its locomotives and that, while the Terminal was engaged in in-placed for unloading either on its team tracks terstate commerce and the employment in or at its freight houses. The Terminal requestion was connected with the movement of ceives likewise from shippers both carload trains, it was not a common carrier. Brooklyn Eastern District Terminal v. United States, 239 Fed. 287, 152 C. C. A. 275. The case comes here on writ of certiorari (243

U. S. 647, 37 Sup. Ct. 475, 61 L. Ed. 945); and the substantial question before us is whether the Terminal is within the scope of the Hours of Service Act, as being a common carrier. The essential facts are these:

1. The Terminal is a navigation corporation with an authorized capital stock of one hundred thousand dollars ($100,000), in

corporated under section 10 of article 3 of the Transportation Corporations Law of the state of New York (Consol. Laws, c. 63)

which reads as follows:

"Seven or more persons may become a corporation, for the purpose of building for their own use, equipping, furnishing, fitting, purchasing, chartering, navigating, or *owning steam,

and less than carload outgoing freight originating at Brooklyn and consigned to points upon the various railroads with which it has

contracts.

The cars carrying this outgoing

freight are then switched and loaded by its locomotives upon its floats and transported by its tugs to the docks of the several rail

roads.

3. For its services in handling freight as the shipper or consignee, but by the railroad above set forth the Terminal is paid not by or steamship company upon whose account the transportation service is performed, at the rate of 3 cents per 100 pounds of freight moving to or from points east of the western

termini of said railroads, and 4% cents *per 100 pounds on freight moving to or from points beyond such termini. Upon prepaid shipments from shippers not on the credit lists of the railroads it collects from the shipper at Brooklyn the money and charges 1 Act of March 4, 1907, c. 2939, 34 Stat. 1415. for the transportation of such freight from "That the provisions of this act shall apply to any that point to its final destination; and also common carrier or carriers, their officers, agents, collects from the consignee at Brooklyn the and employés, engaged in the transportation of pas-charges for the transportation of such freight The term from its point of origin to that place, when such charges have not been prepaid. The freight moneys and charges so received by the defendant from shippers or consignees are accounted for and paid over by it without deduction to the railroads or steamship lines upon whose account they are collected.

from one

sengers or property by railroad
state ... to any other state. •
'railroad' as used in this act shall include all bridg-
es and ferries used or operated in connection with

any railroad, and also all the road in use by any
common carrier operating a railroad, whether owned
or operated under a contract, agreement, or lease;
and the term 'employés' as used in this act shall
be held to mean persons actually engaged in or con-
nected with the movement of any train.

"Sec. 2. That it shall be unlawful for any common carrier, its officers or agents, subject to this act to require or permit any employé subject to this act to be or remain on duty for a longer period than

sixteen consecutive hours. ⚫

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4. The Terminal does not hold itself out as a common carrier; nor does it file with the Interstate Commerce Commission any tariff's or concurrences with tariffs, or copies of

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port property for all who may apply to have their goods transported; but merely transports as agent such freight as is delivered to it by or for those carriers, and those only,* with whom it has elected to make special contracts; and that, under these contracts it performs for the railroads, and not for the public, a part of the whole carriage which they, as common carriers, have undertaken with the shipper to perform.

the contracts with the common carriers by to the provisions of the statute, since it is whom it is paid for the transportation of not incorporated as a common carrier and freight, as heretofore set forth. The termi- does not hold itself out as such; does not nal at Brooklyn is designated by such rail-file tariffs; and does not undertake to transroads and rail and water lines, in the tariffs filed by them with the Interstate Commerce Commission, as one of their receiving and delivering stations for freight in the port of New York; and through bills of lading to such terminal as such station are issued by them on freight to be delivered there. For all freight originating at Brooklyn bills of lading of the railroad or steamship line to which the freight is to be delivered are there issued to the shipper by one of the [2] We need not undertake a definition of defendant's employés, who is duly authoriz- the term "common carrier" for all purposes. ed to issue such bills of lading by the rail- Nor are we concerned with questions of corroad or steamship line by which the freight porate power or of duties to shippers, which is to be transported to its final destination frequently compel nice distinctions between or destinations after the same is delivered to public and private carriers. We have meresuch railroad or steamship line by defendant. ly to determine whether Congress, in declar5. The tracks of the Terminal which ex-ing the Hours of Service Act applicable "to tend from its float bridges to several ware- any common carrier or carriers, their offihouses, coal pockets, platforms, and team cers, agents, and employés, engaged in the tracks have an aggregate length of 8 miles. transportation of passengers or property by One track connecting its several dock and railroad," made its prohibitions applicable to delivery tracks which is kept clear for oper- the Terminal and its employés engaged in ating its switching engines is about one mile the operations here involved. The answer to in length. The length of haul effected by its that question does not depend upon whether locomotives in moving cars between its float its charter declares it to be a common carbridges and warehouses, platforms, pockets, rier, nor upon whether the state of incorpoand team tracks varies from a few yards to ration considers it such; but upon what it nearly a mile. The number of cars so haul- does. Terminal Taxicab Co. v. District of ed as part of a movement varies from a Columbia, 241 U. S. 252, 254, 36 Sup. Ct. 583, single car to eight cars. As an incident to 60 L. Ed. 984, Ann. Cas. 1916D, 765. such movement its locomotives hauling cars cross a public street in Brooklyn.

6. Defendant owns or hires no cars itself, and no cars, except the ones heretofore mentioned, are ever moved over its tracks. For the use of such cars defendant pays no charges; and except by the switching service heretofore described, it transports freight only by water. It handles interstate and intrastate freight indiscriminately, the larger part being interstate. It transports no passen

gers.

7. In connection with the movement of one or more cars between the floats and the loading tracks, warehouses, and team or delivery tracks, defendant employs four to eight switching crews during the day and two at night, each crew consisting of a conductor, engineer and two or more brakemen.

[1] The Hours of Service Act declares (in the first section) 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 common carrier operating a railroad, whether owned or operated under a contract, agreement, or lease."

Hence, neither the character of the Terminal's railroad nor its independent ownership excludes it from the scope of the act. But the Terminal contends that it is not subject

[3] The relation of the Terminal to the several railroads is substantially the same as that of the terminal considered in United States v. Baltimore & Ohio Railroad Co., 225 U. S. 306, 32 Sup. Ct. 817, 56 L. Ed. 1100; 231 U. S. 274, 288, 34 Sup. Ct: 75, 58 L. Ed. 218. The transportation performed by the railroads begins and ends at the Terminal. Its docks and warehouses are public freight stations of the railroads. These with its car floats, even if not under common ownership or management, are used as an integral part of each railroad line, like the stockyards in United States v. Union Stockyard, 226 U. S. 286, 33 Sup. Ct. 83, 57 L. Ed. 226, and the wharfage facilities in Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 31 Sup. Ct. 279, 55 L. Ed. 310. They are clearly unlike private plant facilities. Compare Tap Line Cases, 234 U. S. 1, 25, 34 Sup. Ct. 741, 58 L. Ed. 1185. The services rendered by the Terminal are public in their *nature; and of a kind ordinarily performed by a common carrier. If these terminal operations were conducted directly by any, or jointly by all, of the ten railroad companies with which the Terminal has contracts, the operations would clearly be within the scope of the Hours of Service Law. The evils sought to be remedied exist equally, whether the terminal operations are

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208*

conducted by the railroad companies them- [other stations. The incidental services perselves or by the Terminal as their agent; formed by the Terminal in respect to these and whether the Terminal acts only as such agent for railroads or undertakes in addition to transport on its own account goods for shippers. The precise question presented is, therefore, whether the fact that the Terminal conducts these operations, not as an integral part of a single railroad system but wholly as an agent for one or several, exempts the railroad companies, because they are not the employer and exempts the Terminal, because it is not a common carrier; thus making inapplicable a provision regarding the physical operation of the property devised for the protection of employés and the public.

One who transports property from place to place over a definite route as agent for a common carrier may, under conceivable circumstances, be a private carrier. But what is there in the facts above recited to endow the Terminal with that character? The service which it performs is distinctly public in character; that is, conveying between Brooklyn and points on any of the ten interstate carriers and their connections all property that is offered. The fact that the railroad of the Terminal is short does not prevent it from being a common carrier; United States v. Sioux City Stockyards Co. (C. C.) 162 Fed. 556; nor does the fact that the thing which it undertakes to carry is contained only in cars furnished by the railroad companies with which it has contracts. Railroads, whose only service is hauling cars for other railroads, have been held liable as common carriers under the Safety Appliance Acts March 2, 1893, c. 196, 27 Stat. 531, Comp. St. §§ 8605-8612; Act March 2, 1903, c. 976, 32 Stat. 943, Comp. St. §§ 8613-8615; Act April 14, 1910, c. 160, 36 Stat. 298, Comp. St. §§ 8617-8623 *(Union Stockyards Co. of Omaha v. United States, 169 Fed. 404, 94 C. C. A. 626; Belt Railway Co. of Chicago v. United States, 168 Fed. 542, 93 C. C. A. 666, 22 L. R. A. [N. S.] 582); and under the Twenty-Eight Hour Law Act June 29, 1906, c. 3594, 34 Stat. 607, Comp. St. §§ 8651-8654 (United States v. Sioux City Stockyards Co., supra).2

goods are also the same as those performed by the railroad companies at their other stations. For all freight originating at Brooklyn, it issues through bills of lading to destination. Upon prepaid shipments originating there, it collects from the shippers the charges for transportation from Brooklyn to final destination; except where shippers are on the credit lists of the railroad companies. Upon goods arriving over its line at Brooklyn, it collects from the consignees the charges from point of origin, unless these were prepaid. As the Terminal receives both from railroad companies and from shippers also less than carload freight, it doubtless performs the loading and unloading, as is done at other railroad stations; and for freight delivered at Brooklyn takes appropriate receipts. In no respects, therefore, does the service actually performed by the Terminal for or in respect to shippers differ from that performed by the railroad companies at their other stations. True, the service is performed by the Terminal under contracts with the railroad companies as agent for them and not on its own account. But a common carrier does not cease to be *such merely because the services which it renders to the public are performed as agent for another. The relation of connecting carriers with the initial carrier is frequently that of agent. See Bank of Kentucky v. Adams Express Co., 93 U. S. 174, 23 L. Ed. 872. The relation of agency may preclude contractual obligations to the shippers, but it cannot change the obligations of the carrier concerning the physical operation of the railroad under the Hours of Service Act, which as this court has said, must be liberally construed to secure the safety of employés and the public. Atchison, Topeka & Santa Fé Railway Co. v. United States, 244 U. S. 336, 37 Sup. Ct. 635, 61 L. Ed. 1175, Ann. Cas. 1918C, 794.

[4] It is now admitted that the Terminal is engaged in interstate commerce; and it is clear that at least "switching crews" engaged in moving at one time a locomotive with seven or eight cars between the docks and the warehouses or team tracks, a distance of nearly a mile, are engaged in the movement of a "train." The decisions under the Safety Appliance Acts depend upon the particular context in which the word "train" there occurs, and are not here applicable. Compare United States v. Erie Railroad Co., 237 U. S. 402, 407, 408, 35 Sup. Ct. 621, 59 L. Ed. 1019.

What the Terminal contracts to transport, however, is not primarily cars, but their contents. Its compensation is measured not by the weight, size, or character of the car, but by the weight and the origin or destination of the goods carried therein. These goods the Terminal must, under its contracts with the railroad companies, receive and carry at the rates specified for all who offer them, as fully as the railroad companies do at their The judgment of the Circuit Court of Ap'Compare also McNamara v. Washington Termi-peals is reversed, and that of the District Dal Co., 37 App. D. C. 384, 394 et seq.; State v. Union Court affirmed. Stockyards Co., 81 Neb. 67, 115 N. W. 627.

Reversed.

(248 U. S. 582)

MEMORANDUM DECISIONS

DISPOSED OF AT OCTOBER TERM, 1918

No. 522. OKLAHOMA CITY MILL & EL-, ter Co., 222 U. S. 325, 332-334, 32 Sup. Ct. EVATOR COMPANY, petitioner, v. PAMPA | 156, 56 L. Ed. 221. See Red Jacket, Jr., Coal GRAIN COMPANY. Dec. 23, 1918. For opin- Co. et al. v. United Thacker Coal Company, ion below, see 248 Fed. 477, 160 C. C. A. 487. 248 U. S. 531, 39 Sup. Ct. 5, 63 L. Ed. -, point Mr. Joseph W. Bailey, of Washington, D. C., 3, decided October 21, 1918; Omaha Baum Iron for petitioner. Petition for a writ of certiorari Store Co. v. Moline Plow Co., 244 U. S. 650, to the United States Circuit Court of Appeals 37 Sup. Ct. 743, 61 L. Ed. 1371. for the Fifth Circuit denied.

(248 U. S. 582)

No. 537. Henry A. WISE, Trustee, et al., petitioners, v. The COMMONWEALTH OF VIRGINIA et al. Dec. 23, 1918. For opinion below, see 122 Va. 693, 95 S. E. 632. Mr. Henry A. Wise, of New York City, for petitionMr. J. D. Hank, Jr., of Richmond, Va., for the Commonwealth of Virginia. Petition for a writ of certiorari to the Supreme Court of Appeals of the State of Virginia denied.

ers.

(248 U. B. 582)

(249 U. S. 583) No. 226. The ANN ARBOR RAILROAD COMPANY, plaintiff in error, v. Stephen MANMarch 17, 1919. In error to the OLOFF. Court of Appeals, Sixth Appellate District of the State of Ohio. Mr. Alexander L. Smith, of Toledo, Ohio, for plaintiff in error. Messrs. A. Jay Miller, of Bellefontaine, Ohio, and Albert H. Miller, of Toledo, Ohio, for defendant in error.

PER CURIAM. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code (Act March 3, 1911, c. 231,

No. 753. Sam Orr TRIBBLE, petitioner, v.36 Stat. 1156), as amended by the act of September 6, 1916, chapter 448, § 2, 39 Stats. L., 726 (Comp. St. § 1214).

Dec. SOUTHERN EXPRESS COMPANY. 23, 1918. For opinion below, see 96 S. E. 712. Mr. Ernest F. Cochran, of Anderson, S. C., for petitioners. Mr. Robert C. Alston, of Atlanta, Ga., for respondent. Petition for a writ of certiorari to the Supreme Court of the State of South Carolina denied.

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(249 U. S. 584)

No. 239. The DENVER & RIO GRANDE

RAILROAD COMPANY, plaintiff in error, v. Oresta DA VELLA, Royal Italian Consul, as administrator, etc. March 17, 1919. In error to the Supreme Court of the State of Colorado. For opinion below, see 165 Pac. 254. Mr. Elroy N. Clark, of Denver, Colo., for plainColo., for defendant in error.

tiff in error.

Mr. F. W. Sanborn, of Denver,

PER CURIAM. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156), as amended by the act of September 6, 1916, chapter 448, § 2, 39 Stats. L., 726 (Comp. St. § 1214).

(249 U. S. 583, 604) No. 373. SUPREME CONCLAVE, IMPROVED ORDER OF HEPTASOPHS, plaintiff in error, v. William Marshall WILSON. March 17, 1919. In error to and on petition for writ of certiorari to the Supreme Court of the State of North Carolina. For opinion below, see 174 N. C. 628, 94 S. E. 443. Mr. H. La Rue Brown, of Boston, Mass., and Mr. Olin Bryan, of Philadelphia, Pa., for plaintiff in error. Mr. Thaddeus A. Adams, of Charlotte, N. C., for defendant in error.

diction upon the authority of section 237 of the PER CURIAM. Dismissed for want of jurisJudicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156), as amended by the act of September 6, 1916, chapter 448, 39 Stats. L., 726 (Comp. St. § 1214). Petition for writ of cer

tiorari denied.

(249 U. S. 582)

No. 418. CITY OF CHICAGO et al., plaintiffs in error, Thomas E. DEMPCY, as chairman. etc., et al. March 17, 1919. In error to

(249 U. S. 605)

the Supreme Court of the State of Illinois. No. 872. H. M. LUCK, executrix, etc., petiSee, also, 281 III. 257, 117 N. E. 1010. Messrs. W. W. Gurley, Harry P. Weber, and George W. Miller, all of Chicago, Ill., for plaintiffs in error. Messrs. Edward J. Brundage, James H. Wilkerson, and George T. Buckingham, all of Chicago, Ill., for defendants in error.

PER CURIAM. The motion of the Chicago City Railway Company, Chicago Railways Company, Calumet & South Chicago Railway Company, and the Southern Street Railway Company, for leave "to withdraw as plaintiffs in error in said case and to discontinue the writ of error as to them" is granted upon the condition that the exercise of the permission to withdraw shall be a consent to a severance and without prejudice to the right of the city of Chicago to prosecute its writ of error to a final conclusion.

(249 U. S. 595)

No. 819. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY and Wabash Railway Company, petitioners, v. DES MOINES

UNION RAILWAY COMPANY et al. March 17, 1919. For opinion below, see 254 Fed. 927. Petition for a writ of certiorari to the United

tioner, v. Abram P. STAPLES, trustee, etc. March 17, 1919. For opinion below, see 255 Fed. 637. Mr. W. L. Welborn, of Roanoke, Va., for petitioner. Messrs. Horace M. Fox, and Abram P. Staples, both of Roanoke, Va., for respondent. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied.

(249 U. S. 605)

No. 880. NEW YORK, PHILADELPHIA & NORFOLK RAILROAD COMPANY, petitioner, v. Lillie WILKINS, administratrix, etc. March 17, 1919. For opinion below, see 257 Fed. 42. Messrs. Thomas H. Wilcox and Hughes, Vandeventer & Eggleston, all of Norfolk (Mr. Floyd Hughes, of Norfolk, Va., of counsel), for petitioner. Messrs. John W. Oast, Jr., and R. T. Thorp, both of Norfolk, Va. (Mr. John W. Oast, Jr., of Norfolk, Va., of counsel), for respondent. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fourth Circuit denied.

(249 U. S. 595) States Circuit Court of Appeals for the Eighth tioners, v. W. Gordon MCCABE, Jr., and WilNo. 889. Stephen H. P. PELL et al., petiCircuit granted. liam F. Gray. March 17, 1919. For opinion below, see 256 Fed. 512. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Second Circuit granted.

(249 U. S. 595)

No. 820. DES MOINES UNION RAILWAY COMPANY et al., petitioners, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY and Wabash Railway Company. March 17, 1919. For opinion below, see 254 Fed. 927. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Eighth Circuit granted.

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(249 U. 8. 605) No. 891. ST. LOUIS SOUTHWESTERN RAILWAY OF TEXAS, petitioner, v. Frank SMITH. March 17, 1919. For opinion below, see 254 Fed. 581. Messrs. E. B. Perkins, of Dallas, Tex., and S. P. Ross and Sam R. Scott, both of Waco, Tex., for petitioner. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Fifth Circuit denied.

(249 U. S. 606)

No. 892. The BISIGHT COMPANY and Benjamin Mayer, petitioners, v. ONEPIECE BIFOCAL LENS COMPANY. March 17, 1919. For opinion below, see 259 Fed. 275, which modifies 246 Fed. 450. Mr. Cyrus N. Anderson, of Philadelphia, Pa., for petitioners. Messrs. Edward Rector, of Chicago, Ill., and Virgil H. Petition for a writ of certiorari to the United Lockwood, of Indianapolis, Ind., for respondent. States Circuit Court of Appeals for the Fourth Circuit denied.

(249 U. S. 606)

No. 896. Amey HANEY et al., petitioners, v. Albert ANDERSON et al. March 17, 1919. For opinion below, see 178 Pac. 120. Mr. Malcolm E. Rosser, of Muskogee, Okl., for petitioners. Petition for a writ of certiorari to the Supreme Court of the State of Oklahoma denied.

(249 U. 8. 606)

No. 903. Frederick H. CLARKE and Harry F. CLARKE, petitioners, v. The UNITED STATES of America. March 17, 1919. For opinion below, see 255 Fed. 546. Mr. George Haldorn, of New York City, for petitioners. Mr. Claude R. Porter, Asst. Atty. Gen., for the United States. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Third Circuit denied.

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